Whatcom County uses tax revenue to send mailer about jail tax measure

Cover of the Whatcom County Community Report sent to residents.
Cover of the Whatcom County Community Report sent to residents. Courtesy to The Bellingham Herald

Some community members are furious about the county’s use of public money to mail out information about a jail sales tax measure to registered voters.

The day before many households would start to see ballots arrive from the auditor’s office, each household with at least one registered voter got a flier from the county labeled the “Whatcom County Community Report: Whatcom County Jail.”

I said that has to be a phony mailer, it’s a fraud, there’s no way the county would send something you are describing.

Ken Mann, Whatcom County Council member

The mailer presents pictures of the current and proposed Whatcom County Jail and talks about the proposal to pay for it with a 0.2 percent sales tax increase (20 cents per $100 purchase). The mailer contains information from the county, Whatcom County Executive Jack Louws, Sheriff Bill Elfo, and Prosecutor Dave McEachran, on four 11-by-17 glossy color pages.

A copy of it can be viewed on the county website, co.whatcom.wa.us, by searching for “community report mailer.”

The mailers cost $28,452, according to a county contract. The money came from a 2004 sales tax that voters passed to help pay for a new jail.

State law prohibits the expenditure of public money or use of public offices or spaces to campaign for a specific candidate or promotion of or opposition to any ballot proposition, with a few exceptions. The county claims it is allowed to send out one such mailer under state guidelines.

First impressions

After opening their mail, some of the most vocal political players in the county took to social media to vent about the flier and question whether it violated state campaign rules.

Among them was Whatcom County Council member Ken Mann, who said he first learned of the fliers when an “irate constituent” called him to say they were upset county government would spend taxpayer dollars to lobby for increased taxes.

“When she described it to me, I said that has to be a phony mailer, it’s a fraud, there’s no way the county would send something you are describing,” Mann said.

He was wrong.

In fact, whether they knew it or not at the time, Mann and the other six sitting council members unanimously approved the money for the fliers in September 2014 as part of an $825,887 contract amendment with DLR Group, the consultant working on the jail. The contract included funding for public outreach, which included developing materials for presentations and mailers, among other tasks.

“My initial reaction was shock and dismay and finally outrage,” Mann said. “I was further outraged that they would equate public outreach with a one-sided political propaganda piece during election season.”

Mann said the council “never ever never never never” talked about sending a mailer out, and he thought there was no way the council would have approved that item had it gone before them.

It gives people information to decide whether or not they support it. I feel it follows the intent of the law.

Jack Louws, Whatcom County executive

Doug Starcher, who helped write the statement against the jail sales tax measure for the Whatcom County voters’ guide, said the mailer was a “despicable piece of misrepresentation.”

Starcher questioned the use of pictures in the mailer, specifically images of overcrowded cells.

“The first question is did those prisoners give their permission for those photographs to be taken and used,” he said. “The notion that those photographs are anything other than lobbying in favor of this tax, to try and represent anything else is ridiculous.”

He also questioned the use of pictures of Louws and Elfo, who are both up for re-election.

“There’s a picture of the County Executive, who is running for office, then it lands in people’s mailboxes the day before or the day that their ballots arrive,” Starcher said. “That looks a little sketchy to me.”

Following the rules

On Friday morning, Oct. 16, Louws said the county followed the guidelines for such mailers as laid out by the state Public Disclosure Commission.

“We’re following the PDC guidelines,” he said. “I think it is a fact-based document.”

The PDC used to offer to review mailers for compliance before they were sent out, but that program was cut in January this year, said Lori Anderson, a PDC spokeswoman.

The county referenced a memo from the PDC in putting together the mailer. The executive’s office, sheriff’s office and prosecutor’s office all worked to make sure the flier was fact-based and met the requirements, Louws said. The number of staff hours working on the flier was not specifically tracked.

The county cites a PDC interpretation as giving them “not only the right, but the responsibility” to “inform the general public of the operational and maintenance issues” and tells the county it may “distribute throughout its jurisdiction an objective and fair presentation of the facts for each ballot measure.”

“This shows where we’re at,” Louws said. “It doesn’t propose a position on it, but it does identify that we’re putting it forward to the voters for reasons based on a jail task force and on a resolution the Whatcom County Council has passed.”

When asked if he believed the flier was objective, Louws said, “It gives people information to decide whether or not they support it. I feel it follows the intent of the law.”

Deputy Prosecuting Attorney Dan Gibson, who helped review the text of the flier, which was compiled by other staff, said those who worked on it had framed their work using similar types of fliers that had been used in other counties. One of those was a flier sent out in Skagit County when their new jail sales tax increase was on the ballot.

The title, Whatcom County Community Report, was similar to the title used in Skagit, Louws said.

“Whenever an informational flier is presented, you talk about what is the current situation,” Gibson said. “People are providing factual information, and doing so obviously within a context. In this case, it’s people who work within the facility describing it as it currently exists, and how it would exist if a new facility was constructed.”

Mann said the legality of the flier wasn’t important, but that it’s a matter of principle.

“Whether you’re a Republican or a Democrat or an independent, it’s just so far over the line,” Mann said. “Even if they found some loophole that they can claim this is legit, that does not make it right, and it does not make it ethical.”

Additional concerns and complaint

It was too soon to tell if anyone would file a complaint with the PDC as of Friday afternoon, although several people said they were looking to see if they might have a case to do so.

Richard May, who served on the County Charter Review Commission, said he was most concerned about the title of the ballot measure used in the flier.

“In this mailed piece it says this is Proposition 1,” May said. “The jail vote on the ballot is Proposition 2015-1. Proposition 1 on the ballot is district-only voting.”

People who follow politics closely and think about such issues all the time will be able to make that distinction, May said, but the majority of voters don’t have a lot of time to do background research.

“If they get that piece of mail and say, ‘Yes, I want to vote yes for the jail,’ and it says in giant letters ‘Proposition 1,’ a single-issue voter may say ‘I’ve got to make sure to vote yes for Proposition 1,’” May said. “That could boost the district-only vote by hundreds or even thousands of votes, so that’s a huge issue.”

When asked about the potential for mistaking the two similarly named propositions, Gibson said he didn’t think it was an issue.

“I’m assuming that every voter reads the language of the proposition upon which they are voting,” he said. “I think that’s a fair assumption. The reason we put the language in there is so that people will read it.”

What we want most is for people to be informed on the election and not confused on anything, including all of these (charter) amendments.

Charlie Crabtree, Whatcom County Republicans chairman

Tanya Baumgart, who helped produce this year’s Bellingham/Whatcom County League of Women Voters forums, said she was surprised to see the mailer as she thought the county was not allowed to send them out. She did not speak as a representative of the League, which has not taken a stance for or against the measure.

“I had to work with the PDC to make sure we were in compliance with their guidelines for our forums,” Baumgart said. “The PDC gave me the example that basically any time the taxpayer monies are being used for printing fliers is kind of an illustration of something that violates PDC guidelines.”

Though the flier isn’t explicitly in favor of the ballot measure, Baumgart said, “it definitely gives the one side of the ballot measure but doesn’t give the other side. There were both sides presented at our forums.”

She said that what is included in the flier is reasonably accurate and it appears to be an educational piece, but questioned the fact that it was only sent to voters.

“So that’s not just an educational piece for the community, it’s a targeted mailing to voters,” she said. “That gives me pause.”

Charlie Crabtree, chair of the Whatcom County Republicans, said the Republicans had not been involved in the flier.

When asked about spending taxpayer money on the materials, Crabtree said the PDC states it needs to be used in the public interest, and educational fliers are allowed when school districts are putting out information on levies.

“At the same time, I think that’s a heck of a lot of money,” he said.

Crabtree said he believed the piece was meant to inform the public about what’s on the ballot, and he would stand by the Republicans’ endorsement for the jail measure, but said he could understand the concerns about spending taxpayer money.

“I can tell you there are a lot of conservatives worried about the jail costs, and probably this just adds to that, I don’t know,” Crabtree said. “But when it gets down to it, as far as the Republicans are concerned, what we want most is for people to be informed on the election and not confused on anything, including all of these (charter) amendments.”

General election ballots are due to drop boxes or must be postmarked by Nov. 3.

Reach Samantha Wohlfeil at 360-715-2274 or samantha.wohlfeil@bellinghamherald.com. Follow her on Twitter at @BhamPolitics.