Bruce Harrell, CoUncil President Seattle City Councilmember, District 2 October 27, 2017 Via E?Mail and Hand-Delivery Mr. Dmitri Iglitzin Schwerin Campbell Barnard Iglitzin LaVitt, LLP 18 West Mercer Street Suite 400 Seattle, Washington 98199 Re: Miller et v. Sawant, King County Superior Court, Civil No. 17?2-21842-1 KNT: Scope and Course Decision Dear Mr. lglitzin: This letter supports my SMC 4.64.020 scope and course decision with respect to Councilmember Kshama Sawant?s tender to the City of Seattle of her defense in the above? captioned Lawsuit. 1. Scope Decision SMC 4.64.010 provides that, if the Lawsuit arises ?from any conduct, acts or omissions . in the and course? of Councilmember Sawant?s City employment, ?the City Attorney shall,? at Councilmember Sawant?s request, ?investigate and defend? her in the Lawsuit. ?The determination whether the officer or employee was acting within the scope and course of h[er] employment by the City shall be made by h[er] department head . . . SMC 4.64.020. As Council President, I head the legislative department.1 Thus, I must decide whether Councilmember Sawant?s conduct at issue in the Lawsuit was within the scope and course of her employment. Pursuant to SMC 4.64.010, SMC 4.64.015 (A), SMC 4.64.020, and Seattle City Charter Article 111, Section 3,2 I ?nd that Councilmember Sawant was acting in the scope and course of her employment when she made the speech at issue in the Lawsuit. As part of my determination, I also ?nd that the limitation set forth in SMC 4.64.015 (A) does not apply in the present facts and circumstances. I See Seattle City Charter, Article 111, Section 3. 2 See also, RCW 4.96.041 and RCW An equal opportunity employer 600 Fourth Avenue, Floor 2 PO Box 34025, Seattle Washington 98124-4025 Phone (206} 684-8804 Fax [206) 684?8587 711 Email Mr. Dmitri Iglitzin October 27, 2017 Page 2 II. Process I took my responsibility to make this Scope Decision seriously. My goal was to make sure this decision has nothing to do with politics but rather a review of the pertinent facts and application of the law. I suspect my decision may be unpopular in the views of many but I believe the decision that I have reached and the process that I used to make this decision was logical; performed in good faith; has a well?considered factual basis and is consistent with applicable law. I have examined the facts and circumstances of the speech at issue in the Lawsuit, and have been guided by relevant law. My Scope Decision is based on the following: My review of the facts and theories alleged in the Complaint; Fr? My review of all materials that I received from both you and from Mr. Rosenberg in response to my invitation to submit anything that either of you believe is pertinent to my Scope Decision; My review of a video recording of the speech at issue in the Lawsuit; My review of news articles which reported on Councilmember Sawant?s speech; My review of Councilmember Sawant?s legislative activities, policy pronouncements, and issue advocacy relating to her work as a Councilmember and in particular, after her statements were made; Conversations with Councilmember Sawant about her speech and its factual context; and My review of pertinent legal authorities. In order to ensure that my process was sound and that I was fully apprised, I invited both you and Mr. Rosenberg, Plaintiffs? counsel, to submit any materials that either of you believed would be pertinent to my decision. The responses I received are among the materials that I reviewed and have listed above. Mr. Rosenberg?s ?nal correspondence to me stated that ?we trust the City has the information it needs to make a sound decision.? Reasoning A. Councilmember Sawant?s February 25, 2016 Speech All of the material I received both from you and from Plaintiffs in the Lawsuit suggests that the Lawsuit basically centers around one incident: a speech that Councilmember An equal opportunity employer 600 Fourth Avenue, Floor 2 PO Box 34025, Seattle Washington 98124?4025 Phone (206) 684-8804 Fax (206) 684-8587 TTY 711 Email Mr. Dmitri Iglitzin October 27, 2017 Page 3 Sawant gave on February 25, 2016, ?ve days after the Che Taylor shooting.3 I understand that the following occurred regarding that speech.4 Councilmember Sawant was working in her of?ce at City Hall when she and her staff became aware of a commotion outside. A crowd of demonstrators had gathered in between City Hall and Seattle Police Department Headquarters. The crowd had rallied to protest Che Taylor?s killing. Councilmember Sawant left her of?ce and went down to the street to engage with the crowd. According to Councilmember Sawant, she did so because she felt it was important that she make time to show the community members gathered outside that at least one City of?cial heard their concerns and would pursue accountability on behalf of the community. Councilmember Sawant can be seen in the video holding a ?Black Lives Matter? sign. She was handed a-bullhorn and then made a speech. In her speech, Councilmember Sawant identi?ed herself as an elected of?cial, a minority, and a person in solidarity with the movement for racial, economic, and social justice. Councilmember Sawant discussed ?systematic racial injustice? and pro?ling by the police, her commitment as an elected of?cial to holding the police and political leadership accountable, described the Che Taylor shooting as a ?brutal murder? a ?blatant murder at the hands of the police? and expressed how this shooting showed how urgently she and others need to keep building their movement ?for basic human rights for black people and brown people.? Notably, the video recording of her speech begins with a member of the public stating ?at least somebody came down to talk to us?; and another member of the public remarked during her speech - ?that?s right that?s why she got elected.? The speech lasted a few minutes. B. A Seattle City Councilmember?s Duties Next, I evaluated the scope and breadth of a City Councilmember?s duties. I considered: A City Councilmember?s legislative duties as set forth in the City Charter; 3 Plaintiffs? Complaint also alleges that Councilmember Sawant ?reiterated? her statements ?publicly throughout the year? and has continued to refer to the shooting as a ?murder? and publicly assert that the of?cers avoided ?accountability.? Compl., 1111 26, 28. However, Plaintiffs did not provide any information regarding when Councilmember Sawant allegedly made these statements or the context in which she made them. Instead, Mr. Rosenberg focused on Councilmember Sawant?s February 25, 2016 speech in his submissions to me. I 4 This is only a summary of Councilmember Sawant?s speech. To better understand the basis for my Scope Decision, 1 encourage a review of her statements in their entirety as shown on video and as contemporaneously reported by the Stranger and The Seattle Times. An equal opportunity employer 600 Fourth Avenue, Floor 2 I PO Box 34025, Seattle Washington 98124-4025 Phone (206) 68443804 Fax (206) 684-8587 711 Email bruce.harrell@seattle.gov Mr. Dmitri lglitzin October 27, 2017 Page 4 y; A City Councilmember?s ceremonial, informational, and related functions referenced in the Code of Ethics; The policy-making role of a City Councilmember as discussed in the General Rules and Procedures of the Seattle City Council and in resources published by the Association of Washington Cities; Relevant law, including: 0 Washington law regarding whether an employee acts within the scope and course of his or her employment for the purpose of holding the employer liable for the acts of its employee; 0 Federal decisions considering whether allegedly defamatory speeches and statements made by Members of Congress were within the scope of their duties; 0 Decisions by courts reviewing scope of employment determinations regarding municipal of?cers or employees in other states; and, - Authorities cited by you and Mr. Rosenberg in your respective submissions. Under Washington law, an employee acts within the scope and course of his or her employment not only when acting as expressly authorized by his or her employer, but also when the employee?s conduct is in furtherance of the employer?s interest.5 The test is broad and includes acts that should have been fairly foreseen from the nature of the employment and duties relating to it.6 Federal courts have applied similar state law tests to determine whether allegedly defamatory statements made by Members of Congress fell within the scope of their duties? In those cases, courts rejected a narrow interpretation of a legislator?s responsibilities as confined to the legislative process. In doing so, they recognized that ?a primary obligation? of an elected representative in a democracy is to ?serve and respond to his or her constituents?8 and, that statements made to serve and respond to constituents were Within the scope of an elected 5 Evans v. Tacoma School Dist. No. 10, 195 Wn. App. 25, 37, 380 P.3d 553 (2016); Robel v. Roundup Corp, 148 Wn.2d 35, 53, 59 P.3d 611 (2002); Dickinson v. Edwards, 105 W11.2d 457, 467, 716 P.2d 814 (1986). 6 Melin-Schilling v. 1mm, 149 Wn. App. 588, 593, 205 P.3d 905 (2009). 7 E. g. Wal'erich v. Martha, 562 F.3d 375, 3 83?86 2009); Council on Am. Islamic Relations v. Ballenger, 444 F.3d 659, 662?66 2006); Williams v. US, 71 F.3d 502, 506-07 (5th Cir. 1995); Chapman v. Rahall, 399 F.Supp.2d 7ll 2005); Operation Rescue Na! 7 v. US, 975 F.Supp. 92, 106?09 (D.Mass. 1997). 81d. An equal opportunity employer 600 Fourth Avenue, Floor 2 PO Box 34025, Seattle Washington 98124?4025 Phone (206) 584?8804 Fax (206) 684?8587 TTY 711 Email bruce.harrell@seattle.gov Mr. Dmitri lglitzin October 27, 2017 Page 5 representative?s of?cial duties.9 This includes speaking to the media on matters of public concern and matters of importance to the representative?s constituents. 10 Of note is a federal decision where a Senator made a speech that accused an anti?abortion group of ?murder? was providing political leadership and a basis for voters to judge his performance, ?activities that public of?cials are expected, and should be encouraged, to perform?? Based upon my review of this information, I concluded that Councilmember Sawant, as a Seattle City Councilmember, has duties that are broader than just her legislative actions in council and committee meetings. Seattle City Councilmembers are elected representatives of the people. Our job as local legislators is to respond to citizen concerns and develop policy solutions. An important part of our work is engaging with and responding to our constituents. At times, this may involve giving speeches to members of the public or speaking directly with certain constituents about matters of importance to them. Whether those speeches or discussions would fall within the scope and course of a councilmember?s duties depends upon the individual circumstances in each instance. C. Councilmember Sawant?s Duties and the Speech at Issue in the Lawsuit With these principles as a backdr0p, I then evaluated Councilmember Sawant?s legislative and policy activities and the speech at issue in the Lawsuit to determine whether that speech fell within the scope of Councilmember Sawant?s employment. Facts and considerations pertinent to my scope and course analysis include the following: Councilmember Sawant has a history of taking policy positions regarding police reform and accountability and regarding systemic racism and related issues regarding the use of force; 5> Councilmember Sawant has used of?cial City channels to make similar statements and to advocate for police accountability, reform, and related issues important to the Black Lives Matter movement; Councilmember Sawant was in her of?ce working and descended to join a crowd of . demonstrators who had gathered to have their voices heard regarding the Che Taylor shooting; A member of the crowd expressed appreciation that ?at least somebody came down to talk to us?; 910?. 101d. 1' Operation Rescue Nar?l, 975 F.Supp. at 108. An equal opportunity employer 600 Fourth Avenue, Floor 2 PO Box 34025, Seattle Washington 98124-4025 Phone (206) 684~8804 Fax (206) 684-8587 711 Email Mr. Dmitri Iglitzin October 27, 2017 Page 6 Councihnember Sawant described the shooting as a ?murder? within a longer speech that she was giving regarding the need for police reform and accountability and in describing her commitment to hold the political leadership accountable given her position on the City Council; The nature of the interaction between Councilmember Sawant and the demonstrators suggests that she was responding to their concerns and viewpoints; 3> Councilmember Sawant wrote a fellow Councilmember and the Seattle Police Chief the day after her speech about concerns she had heard from the NAACP and community members outside of City Hall at that protest rally and to schedule related Council brie?ngs; Although Councilmember Sawant?s statements were not directly tied to any specific pending legislation, she was speaking about issues important to her constituents, and on which she has been engaged in legislative and policy advocacy; Councilmember Sawant made the speech a few days after the Che Taylor shooting, not during a campaign rally for re?election. I have concluded, pursuant to SMC 4.64.020, that under these circumstances, Councilmember Sawant?s speech was within the scope and course of her employment as a Seattle City Councilmember. SMC 4.24.015 requires that I also determine, as part of my SMC 4.64.020 scope and course determination, whether the Lawsuit arises from ?dishonest, fraudulent, criminal or malicious acts or omissions.?12 Plaintiffs? Complaint does not allege any such actions, but Plaintiffs? counsel stated in a submission to me that they ?intend to prove? that Councilmember Sawant acted with ?actual malice.? There is not sufficient evidence to support such a determination at this time. Councilmember Sawant did not identify the police officers by name, and the context of her statements do not indicate that she was acting dishonestly, fraudulently, criminally, or maliciously. Instead, she gave the speech in response to members of the public rallying to express their concerns about police use of force and related systemic racism in their view, exempli?ed in the shooting of Che Taylor. Her statements are consistent with policy positions that she has taken on behalf of her constituents. Plaintiffs? counsel may intend to prove malice but they have not done so yet, malice is not in the complaint, I do not see such evidence now, and I will not prejudge the merits of the defamation claim. My determination is that there is not at present suf?cient evidence to support a determination that Councilmember Sawant acted maliciously.?l3 12 If I determine that this limitation applies, then the City ?shall have no obligation to defend or indemnify? Councilmember Sawant. SMC 4.64.015 (A). '3 Nor is there evidence, nor even any allegation, that her speech was dishonest, fraudulent, or criminal. An equal opportunity employer 600 Fourth Avenue, FloorZ PO Box 34025, Seattle Washington 98124?4025 Phone (206} 684-8804 Fax (206) 684~8587 TTY 711 Email bruce.harrell@seattle.gov Mr. Dmitri lglitzin October 27, 2017 Page 7 whisk In closing, lnote an important point. My determination that Councilmember Sawant?s speech was within the scope and cburse of her employment does not mean that I agree with her statements, nor does this disclaimer mean that I disagree. The content of her speech or the effect of her speech will be determined in court and the plaintiffs are still entitled to argue their case in this regard. Thank you for your patience as I took the time appropriate to gather and assess the information that you and others have provided, and to make my decision. A member of our Law Department will contact you regarding your tender of Councilmember Sawant?s defense. Sincerely, . W, . . Bruce A. Harrell Council President Seattle City Council cc: Councilmember Kshama Sawant City Attorney Pete Holmes Adam Rosenberg An equal opportunity employer 600 Fourth Avenue, Floor 2 PO Box 34025, Seattle Washington 98124?4025 Phone (206) 684?8804 Fax {206) 684?8587 711 Email