Concerns about KCLS intention to mail information to voters regarding Renton Proposition 1 right before ballots are issued

From: racorman
To: boardoftrestees@kcls.org, billp@kcls.org
Cc: “tony perkins” , tbriere@rentonwa.gov, rzwicker@rentonwa.gov, rcorman@rentonwa.gov, mpalmer@rentonwa.gov, eprince@rentonwa.gov, gtaylor@rentonwa.gov, dpersson@rentonwa.gov
Sent: Monday, June 25, 2012 11:09:15 AM
Subject: Concerns about KCLS intention to mail information to voters regarding Renton Proposition 1 right before ballots are issued

June 25, 2012
Dear honorable KCLS Director and Board Members,

Thank you for the work you do to provide library service to our residents. My family is a big user of our libraries, and we have appreciated the services you provide.

Sadly, there has been an unfortunate division in our community since KCLS assumed responsibility for our libraries. One of the major issues that has continued to hurt our city is the widely-held feeling among citizens that the City of Renton and KCLS were not appropriately impartial in the 2010 election. As a lesson-learned from that experience, and faced with a new election for the library location, the City of Renton has carefully vetted the ballot title and explanatory statement with the public prior to providing these written materials to the elections office. In addition, the city has left it up to the registered campaign committees promoting the two possible library sites to provide the pro and con statements for each site, and to advocate for each location.

But this week, it has come to my attention that KCLS is planning a taxpayer-funded mailing regarding Renton Proposition 1 that will be timed to reach all Renton citizens just a few days before they receive their ballots, and no one from the public has previously seen this work.

I have numerous concerns regarding the legality, timing, non-public nature, and impartiality of the content of this mailing, and would strongly urge you to reconsider.

LEGALITY:

First, regarding legality, RCW 42.17.130 makes it very clear that with very few and limited exceptions, taxpayer money can not be used to communicate with the public on ballot issues. “No elective official nor any employee of his [or her] office nor any person appointed to or employed by any public office or agency may use or authorize the use of any of the facilities of a public office or agency, directly or indirectly, for the purpose of assisting a campaign for election of any person to any office or for the promotion of or opposition to any ballot proposition.” The only exception that KCLS could take under this statute is to make the claim that this is a usual and customary mailing by KCLS to a group they normally communicate with. However, I don’t believe Renton residents have been getting “customary” mailings from KCLS, nor have Renton residents specifically ever previously been targeted as a specific information subgroup constituency by KCLS. Hence, this mailing does not meet the tests outlined in the PDC document number 04-02, revised 9/28/06 “Guidelines for Local Government Agencies in Election Campaigns”. The PDC document provides a table with “permitted”, “non-permitted,” and “general considerations” as follows:

Permitted: “Agencies may develop an objective and fair presentation of the facts regarding agency needs and the anticipated impact of a ballot measure, and may distribute it in the agency’s customary manner…”

Not Permitted: “Agencies shall not distribute election-related information in a manner that targets specific subgroups. Targeting does not refer to mailing information to agency constituencies such as community leaders, or some other group, or to the agency’s regular distribution list to provide information in a manner that is consistent with the normal and regular conduct of the agency.” “Agencies shall not publicize information supporting or opposing a candidate or ballot measure.”

General Considerations: ” Does the information provide an objective and fair presentation of the facts?” “Is the timing, format, and style, including tone and tenor, of the information presented in a manner that is normal and regular for the agency?” “Is the information distributed in a manner that is normal and regular for the agency?”

Note that KCLS is not prevented from simply providing existing information to citizens that request it. This is a more appropriate and impartial course than a mass-mailing to all of Renton citizens. The Municipal Research and Services Center of Washington says: ” Public agencies and public employees may supply public records in response to requests made by the supporters or opponents of candidates or ballot propositions. An agency should treat all campaigns fairly and equitably in responding to requests for public records. ” (Ref: “Statutory Limits On The Use of Public Funds/Facilities To Assist or Oppose Campaigns, Particularly Campaigns Involving Ballot Measures or Initiatives,” September 13, 2001, part IV, item 7)

TIMING

Second, the timing is clearly an issue. KCLS has known that Renton citizens have been circulating petitions regarding the library location for nearly a year. At any time during this year, KCLS could have sent out a mailing on the topic of the proposed proposition, with time for the community to vet it, digest it, dispute it, rebut it, or accept it. Instead, KCLS has purposefully waited to time a mailing until the peak of the election season, so close to ballot mailing that there is no time for the other campaign to respond in kind. The PDC guidance has a special warning which clearly applies in this case:

“Note on Timing of Activities: A particular activity may be subject to the scrutiny of the Public Disclosure Commission depending in part on whether it is a part of the “normal and ordinary” conduct of a local government agency. Generally, activities that occur after the elected legislative body has passed a resolution authorizing a measure to be placed on the ballot will be subject to greater scrutiny by the Public Disclosure Commission than those occurring before such a resolution has been passed.” (from PDC 04-02, p22 )

NON-PUBLIC NATURE:

Thirdly, the non-public nature of the content of the mailing is a major concern. To my knowledge, there is no publicly shared draft version of this planned “public information” piece. In addition, this information piece has never been mentioned in any of your published agendas for any of your meetings. Failure to include such a critical item on your announced agenda has made it impossible for citizens to comment on your actions in advance, and has created the appearance of election strategy being discussed in private meetings.

Furthermore, the lack of an announced purpose for your executive session at your last board meeting (June 19) was a violation of RCW 42.30.110 (Open Public Meetings Act), and because it followed your vote to write the Proposition 1 letter it gave the appearance of possibly being either a campaign strategy meeting to secretly review the content of this proposed mailing without the opposing side knowing the strategy, or equally bad, a board that is reluctant to receive guidance from their attorney in an open public meeting out of a concerns that their future actions will be suspect enough to bring on litigation. Note that nothing in the state law requires the use of an executive session for the official attorney to give advice to public policy makers about plans and actions going forward. It is only when there is something to conceal from the public (which is very limited by statute and must be explicitly announced), or litigation already underway or likely anticipated, that a board can justify an executive session. If there was any discussion of Renton’s Proposition 1 at the executive session, as some Renton citizens suspect due to the lack of proper legal announcement, the resulting implications that KCLS may be heading on a path toward knowingly and intentionally using public facilities to campaign is extremely serious. Given the amount of time and dollars legitimately spent by many pubic agencies to hold an election, and the time and money invested by private citizens to campaign, there are extreme public trust and economic issues that result from even the appearance of illegally biasing an election.

To be clear, any time you hold an executive session you are bound by law to announce it’s purpose in advance, and that purpose must be explicit as described in the Washington Attorney General’s published guidance which states: “The announced purpose of the executive session must be one of the statutorily-identified purposes for which an executive session may be held. The announcement therefore must contain enough detail to identify the purpose as falling within one of those identified in RCW 42.30.110(1). It would not be sufficient, for example, for a mayor to declare simply that the council will now meet in executive session to discuss “personnel matters.” (Reference: http://www.atg.wa.gov/OpenGovernment/InternetManual/Chapter4.aspx) . Proper announcement was not provided for your June 19, 2012 executive session. Perhaps it was an accidental oversight, but whenever you violate open public meetings laws the public is within its rights to have doubts.

CONCERNS ABOUT IMPARTIALITY

Finally, I have legitimate concerns regarding the impartiality of KCLS leadership on this topic right now, and therefore serious concerns about whether the leadership can compose an impartial letter. For instance, I have received credible information from citizens indicating that at a KCLS library open house the KCLS director has said that the new Cedar River Library would never be built (not more expensive or otherwise not preferred by KCLS, but would simply never be built). I don’t believe this demonstrates the necessary openness to both sides required to oversee an impartial mailing, particularly a rushed one a few days before an election. In addition, I have seen KCLS representatives in recent meetings eager to cite the Renton-KCLS pre-annexation agreement as a source of proof that Renton must hasten to build a new downtown library, while never mentioning many other very important and related provisions of this same agreement. For instance, I have never seen KCLS point out in any public meetings or statements that the pre-annexation agreement gave no timeline for building a new downtown library, or that the placement and funding for the new library should be worked in conjunction with possible West Hill annexation, which has not even gone to voters yet. From the pre-annexation agreement: “KCLS has plans to develop a new library in Skyway and to expand its Fairwood library, each in an area identified for potential annexation to the City. In the event that such areas do annex to the City, KCLS and the City agree to coordinate the development of these projects with the development of the proposed replacement facilities for the Main and Highlands Libraries. KCLS also has plans to develop a new library in the East Hill area of Kent, which would serve certain areas of Renton, including the Benson Hill area. In the event of a successful annexation election of the City into KCLS, KCLS and the City also agree to coordinate the development of this project with the development of the proposed replacement facilities for the Main and Highlands Libraries. In any such case, such coordination might enable KCLS to participate in the funding of the development of the replacement facilities for the Main and Highlands Libraries.”

At any time during the last two years KCLS could have delivered an information piece to Renton residents to provide information on how all of these new library plans and coordination activities were coming along, including how much KCLS might contribute to new library construction costs as a result of East Hill and West Hill (Skyway) plans. But KCLS has not done so. Instead, with days to go before ballots are mailed in a city election, KCLS apparently intends to publish a “normal and customary” mailing that will likely take excerpted language from the pre-annexation agreement out of context in an effort to make Renton citizens feel they are somehow unilaterally obligated to immediately build a smaller library at the new downtown location that KCLS prefers. This begs the question about impartiality.

In addition, I have serious concerns about KCLS’s ability to describe construction or maintenance costs to Renton citizens in an accurate or meaningful way given the apparent biases by the library director and the complicated jurisdictional issues that confuse the issue. With regard to new building costs, time and again the director has stated that the library at the Piazza location is the least expensive one, while always failing to mention the millions of dollars of associated costs to Renton citizens of decommissioning or repurposing the library over the river. Accuracy and impartiality would require that if KCLS ever discusses cost comparisons regarding construction of the Piazza library versus the Cedar River library, then they must include the fact that the Piazza plan leaves it up to Renton taxpayers to find millions more to either repurpose or demolish the library over the river. Not doing so is misleading to Renton citizens, and such omissions create suspicion.

With regard to maintenance and operations costs, KCLS has spoken publicly about the fact that a library at the piazza would cost KCLS less to operate, but translating this into a fair message for Renton Citizens is much more complicated. Renton citizens were paying about two and a half million a year for library service in 2008 in Renton, and they are now paying KCLS about five million a year, a hundred percent cost increase. The KCLS message has seemed to center on a theme that KCLS would have a difficult time affording to operate the library over the Cedar River, even if it was fully rebuilt by Renton taxpayers, with all brand-new systems and meeting modern codes. Given the history that Renton was able to maintain an old building and is now willing to spend in excess of ten million dollars making it a new building, the message that KCLS can not afford to operate this building given their 100% increase in budget over Renton’s budget makes little sense. If this message is going to somehow be put forward as “fact” in KCLS’s mailing, it must be supported by some (so far non-existent) data showing some dramatic increase in building operations cost, or else the message will be obviously not truthful and therefore not compliant with RCW 42.17.130. In addition, an impartial sharing of all the facts by KCLS should include notifying Renton taxpayers that if KCLS abandons the library over the river, and Renton citizens choose not to tear the building down, then Renton citizens will still have to pay similar annual operations costs on this building to those that “KCLS can not afford to pay,” on top of paying KCLS five million per year.

CONCLUSION

I voted for the KCLS annexation in 2010. Following the vote, I did all I could to help Renton citizens productively work through two years of fallout from the close and emotional election. I continue to maintain high hopes that KCLS will prove by actions and performance that I made the right decision. A major step in this direction would be cooperation with those fifteen percent of Renton’s registered voters who have petitioned lawfully to have a say in Renton’s expenditures on new libraries. Allowing this issue to go to ballot without questionable interference by KCLS would go far in proving the library system’s intent to be a first-class library provider. Conversely, biasing the upcoming election with ill-timed literature of suspect impartiality at taxpayer expense will lead to many more years of bad feelings toward KCLS, if not a full-scale de-annexation drive. Neither of the negative outcomes would be good for the Renton community or KCLS, so please help me to avoid them.

If any of you wish to participate in the election, please join the campaign of you choice and enjoy the immense rights you have to participate in the election process as a US citizen. Legitimately participating in campaigns, using your own private time and money, is the best way you can show your fellow citizens that you are passionate about an issue.

Thanks for your consideration,

Randy Corman
2216 Harrington PL NE
Renton, WA 98056