Complaints over Whatcom County jail mailer likely to be dismissed

Whatcom County officials likely won’t be penalized for mailing fliers about a proposed jail sales tax ahead of the Nov. 3 election.

Staff members of the Public Disclosure Commission, the state agency tasked with enforcing campaign finance law, have found that the officials did not break the law, according to a report included in the commission’s Dec. 3 meeting agenda.

The report follows an investigation into 15 complaints filed by different people in Whatcom County after a glossy, four-page, 8.5-by-11 mailer about the jail sales tax increase hit mailboxes the same week that ballots were due to reach voters.

The mailer presented photos of the current and proposed Whatcom County Jail and talked about the proposal to pay for it with a 0.2 percent sales tax increase (20 cents per $100 purchase). Voters rejected the sales tax increase in the November election.

The flier was paid for with $28,452 of taxpayer money, according to a county contract, which raised questions in the community, because state law prohibits — with few exceptions —spending public money or using public offices to promote or oppose any ballot proposition.

The county claimed it was allowed to send one such mailer under state guidelines, and it appears PDC staff agreed.

The staff recommends the commission dismiss the allegations and that the state attorney general take no further action into five complaints that were filed with that office.

The Dec. 3 meeting is scheduled to start at 9:30 a.m. in Olympia and will be live-streamed online on the PDC website. The commission could make a decision at that time.

Special case

The report will be heard sooner than normal because of the filings with the Attorney General’s Office that were made as “45-day citizen action complaints.”

Those complaints, which in part allege that civil rights violations occurred, were made under a portion of state law that allows someone who doesn’t want to file their campaign finance complaint with the PDC to file with the attorney general, said Lori Anderson, PDC spokeswoman.

If the attorney general doesn’t act within 45 days, or after an additional 10-day notice is made, complainants go to court on their own, Anderson said.

“It’s the only case where someone other than the PDC or the attorney general can go to court to enforce the campaign finance laws,” Anderson said. “But we’re only talking about the campaign finance laws, not talking about any civil-rights actions. That’s outside of the commission’s jurisdiction.”

A typical complaint used to take upwards of a year or more to be considered by the commission, and even with recent reorganization of the staff, it still could take around four months, Anderson said.

The staff report to the commission states that the complaints filed with the attorney general refer to alleged civil-rights violations, “citing such concerns as ‘systemic racism,’ illegal ‘mass incarceration policies,’ and ‘deliberate overcrowding.’ ”

“The PDC,” the report continues, “has no jurisdiction over civil rights violations and no authority to investigate those concerns.”

After the commission makes a decision on what to recommend to the attorney general, the decision on what to do next will still lie with the Attorney General’s Office, Anderson said.

Attorneys for those who filed the citizen action complaints could not be reached for comment before deadline.

Complaints

Other claims, as cited in the staff report, included:

▪ The jail mailer was not fair and objective, as required by state law, nor was it a “normal and regular” activity for the county.

▪ The mailer did not accurately present the costs and other anticipated impacts of the ballot measure.

▪ Some of the pictures were inflammatory because they show incarcerated citizens in deplorable housing conditions.

▪ The mailer assisted the campaigns of Whatcom County Sheriff Bill Elfo and Executive Jack Louws by including their pictures, and/or the mailer was a prohibited public service announcement by Elfo and Louws.

▪ It promoted the measure because it targeted registered voters.

▪ It failed to disclose that passage of the measure could affect the county’s ability to raise money for future public-safety issues.

▪ The mailer was part of a coordinated campaign effort.

▪ It was unreported electioneering.

▪ It promoted both the jail measure and one of the charter amendments by misidentifying Proposition 2015-1 as Proposition 1.

Staff conclusion

The PDC staff concluded in the report that Louws, Elfo and Whatcom County Prosecutor David McEachran did not violate state law by authorizing and sending a flier “that promoted Proposition 2015-1 or Proposition 1, or the re-election campaigns of Sheriff Bill Elfo and Executive Jack Louws.”

“In addition,” the report continues, “the jail mailer did not constitute a prohibited public service announcement or an unreported electioneering communication.”

The mailer described the proposal and included the cost to taxpayers by stating the percentage increase, and the statements from Louws, Elfo and McEachran were factual and presented in neutral way, the report states, and it didn’t appear that using their pictures was done to help their election campaigns.

However, the staff was “concerned that the mailer did not include an estimate of the cost to construct and operate the proposed jail facility, and that the mailer was sent to registered voters rather than to all addresses.”

“But given that the mailer accurately described the proposed jail facility and the increased sales and use tax to taxpayers,” and that the county had tried to ask the PDC for guidance on whether sending the mailer only to registered voters would be appropriate, the staff report states that “enforcement does not appear warranted in this instance.”

This story was originally published November 30, 2015 at 5:35 PM with the headline "Complaints over Whatcom County jail mailer likely to be dismissed."