Port Censure Letter Barking Up Wrong RCW

Port Commission Censure of Jack Miles Unfounded

Submitted to Shelton Blog by Clear Cut Mason County Progressive

RE: RCW 42.23.070 as referenced in Port Commission Letter of Censure

Everyone, all citizens, should read this chapter of the RCW. This chapter has nothing to do with information released for public disclosure or information that an employee chooses to make public.

This chapter is about conflicts of interest and using an elected position for one's own gain or using private information for gain or profit.

Here is the entire chapter and section in question:

RCW 42.23.070
Prohibited acts.

(1) No municipal officer may use his or her position to secure special privileges or exemptions for himself, herself, or others.

(2) No municipal officer may, directly or indirectly, give or receive or agree to receive any compensation, gift, reward, or gratuity from a source except the employing municipality, for a matter connected with or related to the officer's services as such an officer unless otherwise provided for by law.

(3) No municipal officer may accept employment or engage in business or professional activity that the officer might reasonably expect would require or induce him or her by reason of his or her official position to disclose confidential information acquired by reason of his or her official position.

(4) No municipal officer may disclose confidential information gained by reason of the officer's position, nor may the officer otherwise use such information for his or her personal gain or benefit. [1994 c 154 § 121.]

So the question to any reasonable person including the Port Commissioners and their misguided and apparently misinformed attorney is, did anyone GAIN or profit from the release of information and, was the information already public or released by permission of the employee in question?

Commissioner Miles claims to have the permission of said employee (previous employee) and as such has not violated any provision of the RCW, including the one cited that obviously doesn't apply to this circumstance. In addition, Mr. Miles only need say he accepted the release or permission to release the information as a private citizen, which he also is, to eliminate any accusation by desperate Port Commissioners or their inventive lawyer.

The public records act DOES apply to this circumstance and it contains exemptions for information that is not to be made available to the public with certain caveats.

Perhaps the Port Commissioners and their attorney should avail themselves of the entire RCW, most notably the public records act RCW 42.56. Specifically:

RCW 42.56.030
Construction.

The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created. This chapter shall be liberally construed **and its exemptions narrowly construed** to promote this public policy and to assure that the public interest will be fully protected. **In the event of conflict between the provisions of this chapter and any other act, the provisions of this chapter shall govern.** [2007 c 197 § 2; 2005 c 274 § 283; 1992 c 139 § 2. Formerly RCW 42.17.251.]

So we see that this act supercedes all other acts and that the provisions of the public records act prevail in all such conflicts.

Then let us direct the Port Commissioners and their counsel to the exemptions contained in the the public records act.

First is the right to privacy. This is what the RCW says:

RCW 42.56.050
Invasion of privacy, when.

A person's "right to privacy," "right of privacy," "privacy," or "personal privacy," as these terms are used in this chapter, is invaded or violated only if disclosure of information about the person: (1) Would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public. The provisions of this chapter dealing with the right to privacy in certain public records do not create any right of privacy beyond those rights that are specified in this chapter as express exemptions from the public's right to inspect, examine, or copy public records. [1987 c 403 § 2. Formerly RCW 42.17.255.]

So we then should ask, is the release of private information from a closed executive session considered highly offensive to a reasonable person if they granted permission to someone to make those records public? It is highly unlikely any reasonable person granting such permission would be offended since they in fact granted permission.

Next we need to ask; did Commissioner Miles act in good faith to comply with the public records act and it's exemptions and the privacy of a employee of the Port?

It would appear to any reasonable person and is contained in the RCW and was previously used by the Port Commission in such an example with the Port Executive Director, that private records from executive sessions are no longer private or privileged if the employee or former employee makes those records public.

There is already a precedent concerning the port and executive sessions. The Executive Director previously made disclosures of his own records from an executive session which was discussed by all the Commissioners in a public meeting, so why all the sudden concern when another employee makes private records public? The Port, it's Commissioners and employees may then discuss that information because the employee disclosed the information in public.

Since the employee in question granted such permission, no reasonable person could conclude that Commissioner Miles didn't act in good faith and attempt to fully comply with the public record act and the disclosure of private employee records. Once again the Port Commissioners and their misinformed attorney are barking up the wrong act and have failed to read the entire RCW that governs the disclosure of such information.

Specific exemptions from the Public Records act that could apply:

RCW 42.56.250
Employment and licensing.

The following employment and licensing information is exempt from public inspection and copying under this chapter:
(4) .: (a) Seeks advice, under an informal process established by the employing agency, in order to ascertain his or her rights in connection with a possible unfair practice under chapter 49.60 RCW against the person; and (b) requests his or her identity or any identifying information not be disclosed;

(5) Investigative records compiled by an employing agency conducting an active and ongoing investigation of a possible unfair practice under chapter 49.60 RCW or of a possible violation of other federal, state, or local laws prohibiting discrimination in employment.

So let's take these one at a time. Section (4) applies to employees. Specifically "Information that identifies a person who, while an agency employee". Since the employee in question was FIRED, they were no longer "an agency employee" so this section is moot.

Section (5) doesn't apply because none of the records cited in the section could be found, so they were not disclosed and no violation exists. Additionally, chapter 49.60 governs discrimination for race, creed, color, religion, etc.

So citizens and voters need to ask: Did anyone violate applicable Chapters or Sections of the Revised Code of Washington or fail to apply exemptions of the Public Records Act?

Let's read the Public Records Specific Exemption again.

RCW 42.56.210
Certain personal and other records exempt.

(1) Except for information described in RCW 42.56.230(3)(a) (see privacy exemptions above) and confidential income data exempted from public inspection pursuant to RCW 84.40.020 (real estate exemptions), the exemptions of this chapter are inapplicable to the extent that information, the disclosure of which would violate personal privacy or vital governmental interests, can be deleted from the specific records sought. No exemption may be construed to permit the nondisclosure of statistical information not descriptive of any readily identifiable person or persons.

In conclusion, since Mr. Miles released personal information with the permission of the former employee to make it public and complied with the privacy exemptions, there has been no violation of any RCW and any censure by the Port Commission is unfounded.

The chapter and section of the RCW the Port Commission mistakenly cites is not applicable in light of the Public Records Act and it's exemptions and caveats overriding all other acts.