FILED 18 SEP 12 AM 11:47 The Honorable Timothy A. Bradshaw KING COUNTY SUPERIOR COURT CLERK E-FILED CASE NUMBER: 18-2-14942-8 SEA 2 3 4 5 6 7 IN THE SUPERIOR COURT OF WASHINGTON COUNTY OF KING 8 9 JAMES EGAN, individually, Plaintiff, 10 11 12 No. v. CITY OF SEATTLE, a Washington municipal corporation, 13 Defendant. 18-2-14942-8SEA CONSOLIDATED DECLARATION OF PETER S. HOLMES IN SUPPORT OF CITY'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL 14 15 ARTHUR WEST, Plaintiff, 16 17 18 19 20 21 No. 18-2-15000-1SEA v. SEATTLE CITY COUNCIL, CITY OF SEATTLE, LISA HERBOLD, BRUCE HARRELL, KSHAMA SAWANT, ROB JOHNSON, DEBORA JUAREZ, MIKE O'BRIEN, SALLY BAGSHAW, TERESA MOSQUEDA, LORENA GONZALEZ, Defendants. 22 23 DECLARATION OF PETER S. HOLMES IN SUPPORT OF CITY'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL - 1 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 1 2 3 4 I, PETER S. HOLMES, declare under the penalty of perjury under the laws of the State of Washington as follows: 1. I am over the age of eighteen and am competent to testify to matters herein. I make this declaration based on my personal knowledge unless otherwise stated herein. 5 2. I am the elected City Attorney for the City of Seattle. 6 3. When Mr. Egan originally filed this case, I entered my personal appearance, along with two 7 Assistant City Attorneys. The City treats its obligations under the court rules in this and 8 every case with the utmost importance. 9 4. In addition to those attorneys entering a notice of appearance, two additional Assistant City 10 Attorneys have also devoted significant time to this matter, including investigation of the 11 underlying facts and relevant documents. Aaron Valla, an Assistant City Attorney, along 12 with Janet Francisco, a Paralegal in our office, have been assigned to work exclusively on 13 the collection, review, and production of documents in response to discovery. 14 5. The Seattle Elections Code contains a strict prohibition on the use of City resources for 15 political purposes. As an elected official, I endeavor at all times to scrupulously abide by the 16 provisions in the Code requiring separation between political and official business. I have 17 two separate phone lines, use a personal email account for political business, and conduct 18 all political meetings and other business away from my City office. But there are times when 19 the distinction between official and political business is difficult to discern, and this case 20 provides a clear example of that. 21 6. For example, discussions among City Councilmembers regarding either the referendum to 22 repeal the EHT or the education levy initiative, as a matter of law, did not concern official 23 City business because they were (in the EHT referendum's case) and are (in the education DECLARATION OF PETER S. HOLMES IN SUPPORT OF CITY'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL -2 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 1 levy's case) active ballot campaigns. By definition, the provisions of the OPMA did not and 2 could not apply to them. In contrast, discussions regarding possible Council action to repeal 3 the EHT did relate to official business. But what is a Councilmember to do upon receiving 4 a communication that, for example, suggests the Council consider repealing the EHT to 5 protect the prospects for the education levy on the ballot. Does that concern political activity, 6 to which the OPMA does not apply and which by law cannot be conducted on City phones 7 or email? Yes, because it involves the education levy's ballot campaign. Does it 8 simultaneously concern official business, which is governed by the OPMA? Also yes, 9 because it involves possible legislative action by Council. Similarly, could five or more 10 Councilmembers meet, in their personal capacities and away from the office, to discuss 11 strategies for defeating the EHT referendum and promoting the education levy? Yes. But if, 12 in the course of that conversation, discussion turns to the possibility of legislatively repealing 13 the EHT, in order to be assured safe legal harbor under our unsettled and overlapping laws, 14 it is advisable for some Councilmembers to leave the room to avoid having a quorum present. 15 I use this example to highlight the difficulty for City officials to continually observe these 16 distinctions when the nature of communications and meetings may change from minute to 17 minute and even from word to word. 18 7. Because the events leading up to the EHT repeal involved both political and official conduct, 19 individuals were using both personal and City devices for some potentially relevant 20 communications, and discovery in this case is more complicated than it would be were these 21 factors not present. The practical effect on our response to discovery is that there are many 22 more devices that need to be searched, more communications with clients to ascertain the 23 context of specific records, and more investigation and analysis of relevant records than DECLARATION OF PETER S. HOLMES IN SUPPORT OF CITY'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL -3 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 1 would be present in a different type of case. Thus, significant time and effort is required to 2 respond to discovery. 3 DATED this 12th day of September 2 4 5 6 Peter S. Holmes Seattle City Attorney 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 DECLARATION OF PETER S. HOLMES IN SUPPORT OF CITY'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL -4 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200