FILED 1 2020 SEP 14 09:00 AM KING COUNTY SUPERIOR COURT CLERK E-FILED CASE #: 20-2-13314-1 SEA 2 3 4 The Honorable Jim Rogers 5 6 7 SUPERIOR COURT OF THE STATE OF WASHINGTON KING COUNTY 8 9 IN RE THE MATTER OF RECALL 10 CHARGES AGAINST CITY OF SEATTLE 11 COUNCILMEMBER KSHAMA SAWANT 12 13 14 No. 20-2-13314-1 SEA BRIEF OF PETITIONER IN SUPPORT OF RECALL CHARGES AGAINST CITY OF SEATTLE COUNCILMEMBER KSHAMA SAWANT 15 16 17 18 19 20 21 22 23 24 25 26 Ernest H. Lou and the Recall City of Seattle Councilmember Kshama Sawant Committee submit this brief in support of a petition to recall Seattle City Councilmember Kshama Sawant for misfeasance, malfeasance, and violation of her oath of office. The Statement of Charges submitted by Mr. Lou and the Ballot Synopsis prepared by King County Prosecuting Attorney Dan Satterberg detail several acts by Councilmember Sawant that violated the Seattle City Code and state laws, endangered City of Seattle residents and City employees, misdirected City property and resources to private political aims, and left a private political organization in charge of employment decisions concerning City employees. The question before the Court is not whether these charges justify Councilmember Sawant being removed from office, it is simply whether the charges are sufficient to be placed before Seattle voters, so they might make that choice for themselves. Councilmember Sawant, by her own 27 Davis Wright Tremaine LLP BRIEF - 1 L AW O FFICE S 920 Fifth Avenue, Suite 3300 Seattle, WA 98104-1610 206.622.3150 main · 206.757.7700 fax 1 actions, has demonstrated a disdain for the law, the safety of government officials and the health 2 and safety of elements of the public she claims to represent. The Court should find sufficient 3 grounds to allow the gathering of signatures placing her recall before the voters. 4 5 I. STATEMENT OF FACTS Councilmember Kshama Sawant is a member of the Seattle City Council from District 3. 6 She was first elected to the City Council in 2014, and was most recently elected to her third term 7 in 2020. 8 Ernest “Ernie” Lou is a Seattle native and a registered voter in the state of Washington, 9 King County, and the City of Seattle in City Council District 3. On August 18, 2020, Mr. Lou 10 filed a Statement of Charges Supporting the Recall Election of City of Seattle City 11 Councilmember Kshama Sawant (“Statement of Charges”) with the King County Elections 12 Department. 13 The Elections Department then transmitted the statement of charges to the King County 14 Prosecuting Attorney’s Office, and pursuant to RCW 29A.56.130, the Prosecutor’s Office 15 prepared a ballot synopsis. On September 1, 2020, the Prosecutor’s Office filed a Petition to 16 Determine Sufficiency of Recall Charges and Adequacy of Ballot Synopsis. That same day, 17 pursuant to RCW 29A.56.140, the Court issued an Order Setting Briefing Deadline and Setting 18 Hearing. 19 20 II. LEGAL STANDARD “Recall is the electoral process by which an elected officer is removed before the 21 expiration of the term of office.” In re Recall of Brunham, 194 Wn.2d 68, 75 (2019) (citing 22 Chandler v. Otto, 103 Wash.2d 268, 270, 693 P.2d 71 (1984)). “In Washington, voters have a 23 constitutional right to recall a nonjudicial elected official who has committed some act or acts of 24 malfeasance or misfeasance while in office, or who has violated his [or her] oath of office.’” Id. 25 (citing Wash. Const. art. I, § 33). “Every elective public officer in the state of Washington expect 26 [except] judges of courts of record is subject to recall and discharge by the legal voters.” Wash. 27 Const. art. I, § 33. Davis Wright Tremaine LLP BRIEF - 2 L AW O FFICE S 920 Fifth Avenue, Suite 3300 Seattle, WA 98104-1610 206.622.3150 main · 206.757.7700 fax 1 The Constitution guarantees voters the right to recall public officials, but left it to the 2 legislature to “pass the necessary laws to carry out the provisions” of the Constitution. The 3 legislature has done so at Chapter 29A.56 of the Revised Code of Washington, which lays out 4 the procedure for a recall petition to become effective. First, a voter must create and file a charge 5 with “the elections officer whose duty it is to receive and file a declaration of candidacy for the 6 office concerning the incumbent of which the recall is to be demanded.” RCW 29A.56.110; 7 RCW 29A.56.120. 8 The elections officer provides notice of the charge to the incumbent whose recall is being 9 sought and transmits the ballot to a second officer to prepare “a ballot synopsis of the charge of 10 not more than two hundred words.” RCW 29A.56.130. The identity of the second officer 11 depends on the political jurisdiction of the public officer whose recall is demanded, but in this 12 case is the King County Prosecutor’s Office. See id. The synopsis must “set forth the name of the 13 person charged, the title of the office, and a concise statement of the elements of the charge.” Id. 14 The officer responsible for preparing the synopsis must then “certify and transmit the 15 exact language of the ballot synopsis to the persons filing the charge and the officer subject to 16 recall.” and “to the superior court of the county in which the officer subject to recall resides.” Id. 17 The officer must also “petition the superior court to approve the synopsis and to 18 determine the sufficiency of the charges.” Id. Within fifteen days of receiving the petition, the 19 superior court must hold a hearing to determine whether “whether or not the acts stated in the 20 charge satisfy the criteria for which a recall petition may be filed, and . . . the adequacy of the 21 ballot synopsis.” RCW 29A.56.130. 22 If the court determines the petition is sufficient, it must “certify and transmit the ballot 23 synopsis to the officer subject to recall, the person demanding the recall, and either the secretary 24 of state or the county auditor, as appropriate.” RCW 29A.56.140. At that point, sponsors of the 25 recall must obtain sufficient signatures supporting the recall. RCW 29A.56.150; RCW 26 29A.56.150. If they succeed, it passes to the people of Washington to decide whether to remove 27 the incumbent, through a special election. RCW 29A.56.210; RCW 29A.56.260. Davis Wright Tremaine LLP BRIEF - 3 L AW O FFICE S 920 Fifth Avenue, Suite 3300 Seattle, WA 98104-1610 206.622.3150 main · 206.757.7700 fax 1 As the foregoing makes clear, “[t]he role of the courts in the recall process is highly 2 limited.” In re Recall of Kast, 144 Wn.2d 807, 813 (2001) (en banc). The courts “function as a 3 gatekeeper” to ensure the minimal legal and factual sufficiency of recall petitions to protect 4 public officials from harassment through “frivolous or unsubstantiated charges.” Id. at 813. The 5 Court’s does not decide “whether the alleged facts are true or not” because “it is the voters, not 6 the courts, who will ultimately act as the fact finders.” Id. The Court’s role is simply to 7 determine “whether, accepting the allegations as true, the charges on their face support the 8 conclusion that the officer abused his or her position.” In re Recall of Wasson, 149 Wn.2d 787, 9 792 (2003). 10 At the hearing stage, “[t]he court shall not consider the truth of the charges, but only their 11 sufficiency.” RCW 29A.56.140. “Sufficiency” refers to two distinct concepts: factual sufficiency 12 and legal sufficiency. Burnham, 194 Wn.2d at 75. A charge is factually sufficiency when it 13 provides a detailed description of events, which, if accepted as true, would constitute a prima 14 facie showing of misfeasance, malfeasance, or a violation of the oath of office. Id. A charge is 15 legally sufficient if it specifies substantial conduct that clearly amounts to misfeasance, 16 malfeasance, or violation of a public official’s oath of office. Id. 17 The Court must certify the petition if it states legally and factually sufficient allegations 18 that the official engaged in misfeasance, malfeasance, or a violation of the official’s oath office. 19 RCW 29A.56.110(1). 20 A. 21 The test of “factual sufficiency” simply refers to whether the charge complies with the Factual Sufficiency 22 statutory requirement to “state the act or acts complained of in concise language, give a detailed 23 description including the approximate date, location, and nature of each act complained of, . . . 24 and be verified under oath that [the petitioners] believe the charge or charges to be true and have 25 knowledge of the alleged facts upon which the stated grounds for recall are based.” 26 RCW 29A.56.110; see In re Recall of Burnham, 194 Wash. 2d 68, 76 (2019). 27 Davis Wright Tremaine LLP BRIEF - 4 L AW O FFICE S 920 Fifth Avenue, Suite 3300 Seattle, WA 98104-1610 206.622.3150 main · 206.757.7700 fax 1 “[A]lthough the charges may contain some conclusions,” taken as a whole, they must 2 “state sufficient facts to identify to the electors and to the official being recalled acts or failure to 3 act which without justification would constitute a prima facie showing of misfeasance, 4 malfeasance, or a violation of the oath of office.” Chandler, 103 Wash. at 274. And “[a]lthough a 5 court may not determine whether charges are true, it may go outside the petition to determine 6 whether there is a factual basis for the charges.” Recall of Sandhaus, 134 Wn.2d 662, 669 (1998) 7 (en banc) (citing In re Anderson, 131 Wn.2d 92, 95 (1997)). 8 When “the petition charges the official with violating the law, the petitioners must at least 9 have knowledge of facts which indicate an intent to commit an unlawful act.” Matter of Recall of 10 Wade, 115 Wash.2d 544, 549 (1990). Documents published by media which directly evidence 11 the official’s misconduct, such as newspaper publications of transcripts of a public official 12 conversations that are the subject of misfeasance or malfeasance, are sufficient to establish a 13 petitioner’s personal knowledge. See In re Recall of West, 155 Wn.2d 659 (2005); In re Recall of 14 Davis, 164 Wn.2d at 368-69. 15 B. 16 “Legally sufficient means that an elected official cannot be recalled for appropriately Legal Sufficiency 17 exercising the discretion granted him or her by law. To be legally sufficient, the petition must 18 state with specificity substantial conduct clearly amounting to misfeasance, malfeasance or 19 violation of the oath of office.” Chandler, 103 Wash.2d at 274. 20 “‘Misfeasance’ or ‘malfeasance’ in office means any wrongful conduct that affects, 21 interrupts, or interferes with the performance of official duty.” RCW 29A.56.110(1). 22 “Misfeasance” is “the performance of a duty in an improper manner,” while “malfeasance” 23 means “the commission of an unlawful act.” Id. “‘Violation of the oath of office’ means the 24 neglect or knowing failure by an elective public officer to perform faithfully a duty imposed by 25 law.” RCW 29.82.110(2). “These definitions, as well as the rest of the recall statute, are to be 26 construed in favor of the voter, not the elected official.” In re Recall of Pearsall-Stipek, 141 27 Wash. 2d 756, 765 (2000). Davis Wright Tremaine LLP BRIEF - 5 L AW O FFICE S 920 Fifth Avenue, Suite 3300 Seattle, WA 98104-1610 206.622.3150 main · 206.757.7700 fax 1 The requirement of legal sufficiency prevents an elected official from being “recalled for 2 appropriately exercising the discretion granted him or her by law.” Burnham, 194 Wn.2d at 76 3 (citing Chandler 103 Wash.2d at 274). “[O]fficials cannot be recalled for exercising their 4 discretionary powers unless that discretion was exercised in a manifestly unreasonable manner.” 5 Wade, 115 Wash.2d at 549 (citing Greco v. Parson, 105 Wn.2d 669, 672 (1986)). Nor may an 6 official be recalled “if the conduct is insubstantial or if the elected official acted with a legal 7 justification.” Kast, 144 Wash.2d at 815. 8 But when a petition identifies “a standard, law, or rule that makes the elected official’s 9 conduct unlawful,” and alleges facts that, if true, make out a violation of that standard, law, or 10 rule, the petition is sufficient to go to the voters to decide whether to recall the official. See 11 Burnham, 194 Wash.2d at 76. 12 13 III. ARGUMENT The Statement of Charges sought to initiate recall proceedings for Councilmember 14 Sawant for six different acts. As succinctly summarized in the Petition prepared by the King 15 County Prosecuting Attorney, the Statement of Charges recited that Councilmember Sawant: 16 (1) Delegated city employment decisions to a political organization outside city government. 17 (2) Used city resources to support a ballot initiative and failed to comply with public disclosure requirements related such support. 18 19 (3) Disregarded state orders related to COVID-19 and endangered the safety of city workers and other individuals by admitting hundreds of people into city hall on June 9, 2020, when it was closed to the public. 20 21 (4) Used her official position to encourage attendees at a June 28, 2020 rally to illegally occupy the Seattle Police Department East Precinct when the city was trying to de-escalate violence in the area. 22 23 (5) Led a protest march to Mayor Jenny Durkan’s private residence, the location of which Sawant knows is protected under state confidentiality laws. 24 25 (6) Encouraged protestors to occupy the Seattle Police Department East Precinct and helped create the Capitol Hill Occupation Protest (CHOP) Zone which turned into a violent criminal environment that negatively impacted local businesses and residents. 26 27 Davis Wright Tremaine LLP BRIEF - 6 L AW O FFICE S 920 Fifth Avenue, Suite 3300 Seattle, WA 98104-1610 206.622.3150 main · 206.757.7700 fax 1 Pet. to Determine Sufficiency of Recall Charges, at 2. 2 After further review of the Statement of Charges and Ballot Synopsis, Petitioners have 3 determined not to argue as to the sufficiency of charges (4) and (6). 4 Each of the acts listed in Charges (1), (2), (3), and (5), if true, constitute misfeasance, 5 malfeasance, or violation of Councilmember Sawant’s oath of office. With respect to each, the 6 Statement of Charges gives “a detailed description including the approximate date, location, and 7 nature of each act complained of.” The charges are factually and legally sufficient to move 8 forward in the recall process and to the voters. 9 Councilmember Sawant Disregarded State Orders Related to COVID-19 and Endangered the Safety of City Workers by Admitting Hundreds of People into City Hall When it Was Closed to the Public. 10 11 The Statement of Charges alleged that Councilmember Sawant used her position as a 12 councilmember to allow hundreds of people to illegally enter City Hall afterhours, constituting 13 malfeasance and a violation of her oath of office. Specifically, the Statement alleges that on the 14 evening of June 9, 2020, outside of regular opening hours and when City Hall “was closed to the 15 public because of COVID-19,” Councilmember Sawant used her official position to allow 16 hundreds of people to enter City Hall. Statement of Charges at 3. The Statement further alleges 17 that City employees complained of Councilmember Sawant’s actions due to concerns for their 18 safety. Id. 19 Contemporaneous news coverage detailed the events, which occurred during widespread 20 protests against police brutality and systemic racism in Seattle and around the country. See, e.g., 21 [Sawant Marches Through City Hall with Demonstrators Demanding Mayor Durkan’s…; Times 22 Article on City Hall Protest]. Additionally, Councilmember Sawant has effectively admitted to 23 these actions by uncritically “retweeting” media coverage of the event stating that the 24 councilmember used her “key” to City Hall to admit protesters. See Decl. of Lou, Ex. A 25 (“Councilmember Sawant has a key to City Hall, allowing protesters to enter and chant for the 26 mayor’s removal”); see also id, Ex. B (“Councilmember Sawant used her key to let protesters in 27 to Seattle City Hall tonight.”). Davis Wright Tremaine LLP BRIEF - 7 L AW O FFICE S 920 Fifth Avenue, Suite 3300 Seattle, WA 98104-1610 206.622.3150 main · 206.757.7700 fax 1 Councilmember Sawant also retweeted a June 9, 2020, tweet stating “Seattle City 2 Councilmember Kshama Sawant led protesters to occupy City Hall for about an hour this 3 evening.” Id., Ex. C. In a video and image embedded in that Tweet, Councilmember Sawant was 4 asked why she “brought the group into City Hall” and responded “it was essential that the power 5 and uprising evident in the streets be seen in the halls of power in Seattle.” See id. 6 Taken as true, these facts allege that Councilmember Sawant knowingly violated orders 7 from Governor Jay Inslee and the Washington Secretary of Health, and violated the Seattle City 8 Code she was sworn to uphold. In response to the global coronavirus pandemic, Governor Inslee 9 issued several orders intended to combat the spread of coronavirus in Washington. See id., Ex. D 10 (Governor’s Proclamation 20-25, as extended and amended). Proclamation 20-25, which was in 11 effect on June 9, 2020, prohibited “all people in Washington State from leaving their homes or 12 participating in social, spiritual and recreational gatherings of any kind regardless of the number 13 of participants.” Governor’s Proclamation 20-25, 2 (extended by Proclamation 20-25.4). 14 Councilmember Sawant facilitated a large gathering of hundreds of people within City Hall, in 15 direct violation of the Governor’s Proclamation and in a way that posed a direct threat to the 16 health and safety of City employees. 17 Councilmember Sawant’s actions further violated the Seattle Municipal Code, which 18 prohibits a public official from using City property “for other than a City purpose.” SMC 19 4.16.070(B)(2); see also SMC 2.04.300 (barring use of city facilities to promote or oppose 20 candidates and ballot measures). 21 The Statement of Charges alleges that Councilmember Sawant knowingly used her 22 special access to City Hall—which she possessed by virtue of her position as a councilmember— 23 to open the building to the public afterhours to host an unauthorized gathering without regard to 24 the risk it posed to City employees or the public. Councilmember Sawant’s actions violated 25 Governor Inslee’s proclamations prohibiting such gatherings and risked City employees’ health 26 and safety, and further violated the Seattle City Code. Using her key to the building and allowing 27 a potentially violent crowd into City Hall after the building was closed and following acts of Davis Wright Tremaine LLP BRIEF - 8 L AW O FFICE S 920 Fifth Avenue, Suite 3300 Seattle, WA 98104-1610 206.622.3150 main · 206.757.7700 fax 1 violence on the streets was both unreasonable and dangerous. Voters should have the right to 2 determine whether this malfeasance and violation of her oath to uphold the law warrants her 3 removal from office. 4 Councilmember Sawant’s violations of the Governor’s orders are “unlawful act[s]” 5 constituting malfeasance. See RCW 29.82.110(1)(b). Councilmember Sawant’s knowing failure 6 to comply with these laws further constitutes a violation of her oath of office. See 7 RCW 29.82.110(2). 8 Councilmember Sawant Led a Protestors to Mayor Jenny Durkan's Private Residence 9 The Statement of Charges alleges that Councilmember Sawant lead a protest march to the 10 home of Mayor Durkan, the location of which is confidential, constituting malfeasance and a 11 violation of her oath of office. 12 Specifically, the Statement of Charges alleges that on June 3, 2020, Councilmember 13 Sawant led a protest march to Mayor Durkan’s home, and that the address of Mayor Durkan’s 14 home was protected by confidentiality laws due to her prior role as the United States Attorney 15 for the Western District of Washington. Statement of Charges at 5. The Statement of Charges 16 further alleges that protesters Councilmember Sawant led to Mayor Durkan’s home vandalized 17 the property by spray-painting obscenities on the fence surrounding it. Id. 18 The protest was widely covered by the media. See Decl. of Lou, Ex. E (photo of Sawant 19 purportedly in front of Mayor Durkan’s home); see also id. at Ex. F. 20 Taken as true, these facts make a prima facie showing that Councilmember Sawant 21 knowingly violated state and federal confidentiality laws and her oath of office. The Seattle 22 Municipal Code prohibits a public official from disclosure or use of any confidential information 23 gained by reason of her official position for other than a City purpose. SMC 4.16.070(D). The 24 address of Mayor Durkan’s home constitutes “confidential information,” and to the extent that 25 Councilmember Sawant was privy to that information by virtue of her office, she violated SMC 26 4.16.070(D) by revealing Mayor Durkan’s home address to protesters at the June 3 rally. 27 Davis Wright Tremaine LLP BRIEF - 9 L AW O FFICE S 920 Fifth Avenue, Suite 3300 Seattle, WA 98104-1610 206.622.3150 main · 206.757.7700 fax 1 Councilmember Sawant Delegated City Employment Decisions to a Political Organization Outside City Government 2 The Statement of Charges details Councilmember Sawant’s delegation of hiring decisions 3 for City of Seattle employees to an outside political organization, which constitutes malfeasance 4 and a violation of Councilmember Sawant’s oath of office. 5 Specifically, the Statement of Charges alleges that in December 2017, Councilmember 6 Sawant “delegated decisions regarding the hiring and termination of City of Seattle employees to 7 an outside political organization.” Statement of Charges at 2. Specifically, the Statement of 8 Charges alleges that Councilmember Sawant gave “authority over staffing decisions for her City 9 of Seattle Council Office” to the National Executive Committee and the Seattle Executive 10 Committee of the Socialist Alternative Party. Id. The Statement of Charges further alleges that 11 “[a]t least one employee was allegedly fired as a result of a decision of the Executive Committee 12 of this political organization, and that the employee protested that the firing was the result of 13 retaliation.” Id. 14 The Statement of Charges also references media coverage of these events, which 15 document Councilmember Sawant’s delegation of staffing decisions to a private organization, 16 including internal documents showing Councilmember Sawant’s subservience to the private 17 organization’s directives. For example, in an October 28, 2017, letter from Councilmember 18 Sawant to the Seattle Executive Committee of the Socialist Alternative Party, Councilmember 19 Sawant acknowledged that she was accountable to the Party, and rejected the contention that her 20 Council Office was “failing – in any way – to communicate to the [Seattle Executive 21 Committee], or to be accountable to” the organization. Decl. of Lou, Ex. G. 22 In December 2017, the Socialist Alternative Party adopted a resolution stating that “the 23 IEC [International Executive Committee] agrees that the running and staffing of KS’s 24 [Councilmember Kshama Sawant’s] office in Seattle be agreed by the national EC [Executive 25 Committee] of the organization in consultation with KS.” Decl. of Lou, Ex. H. 26 27 Davis Wright Tremaine LLP BRIEF - 10 L AW O FFICE S 920 Fifth Avenue, Suite 3300 Seattle, WA 98104-1610 206.622.3150 main · 206.757.7700 fax 1 The Seattle Executive Committee later wrote an undated letter stating that the Social 2 Alternative Party’s National Committee “is responsible for making decisions about council staff 3 in consultation with Kshama” and in fact had recently fired a City Council employee working in 4 Councilmember Sawant’s office. Id., Ex. I. In a January 24, 2018 letter, the Seattle Executive 5 Committee wrote that they, not Councilmember Sawant, were the ones “who took the decision to 6 terminate Whitney’s work in the Council office, and the decision to end his employment with SA 7 as well.” Id., Ex. J. 8 Taken as true, these facts make a prima facie showing that Councilmember Sawant 9 violated of SMC 4.04.070, the code of ethics, and her oath of office. SMC 4.04.070 affords City 10 employees certain rights, among them the right to “engage in political activities.” Yet, 11 Councilmember Sawant allowed the Social Alternative Party to terminate a City employee for 12 that employee’s political opinions. See id. at Ex. K (stating that members of the Social 13 Alternative Party believed the termination of Whitney Kahn was made in political retaliation). 14 The Seattle Municipal Charter’s Code of Ethics requires that: 15 City officers and employees will demonstrate the values of integrity in the performance 16 of the City's business, accountability to the law and to the people we serve, stewardship 17 of the City's resources, and independence in the performance of our jobs. City employees 18 should recognize that public service is a sacred trust, and should strive to live up to the 19 highest ethical standards. 20 SMC 4.16.010 (emphasis added). By delegating City employee hiring and firing decisions to an 21 outside entity, Councilmember Sawant did not independently perform her job as city 22 councilmember and violated the Code of Ethics and the public’s sacred trust. 23 Upon taking her seat on the Seattle City Council, and each time after being re-elected to 24 that seat, Councilmember Sawant swore an oath to “support the Constitution of the United 25 States, and of the State of Washington, and the Charter and ordinances of The City of Seattle; 26 and that he or she will faithfully conduct himself or herself in office.” Charter of the City of 27 Davis Wright Tremaine LLP BRIEF - 11 L AW O FFICE S 920 Fifth Avenue, Suite 3300 Seattle, WA 98104-1610 206.622.3150 main · 206.757.7700 fax 1 Seattle, § 4. Councilmember Sawant violated this oath by violating the rights of City employees 2 and improperly delegating her official duties to an outside entity. 3 Councilmember Sawant Used City Resources to Support a Ballot Initiative and Failed to Comply with Public Disclosure Requirements Related to Such Support. 4 5 The Statement of Charges alleged that between January and February, 2020 6 “Councilmember Sawant had used her official office equipment to promote and raise money for 7 a ballot initiative (or other electioneering)” and failed “to comply with public disclosure of all 8 funds raised and spent in those activities,” which constitute malfeasance and a violation of 9 Councilmember Sawant’s oath of office. Statement of Charges at 3. The Statement of Charges 10 further alleges that the Seattle Election and Ethics Commission (“SEEC”) and the Washington 11 State Public Disclosure Commission (“PDC) “continue to investigate these violations. Id. 12 In fact, on 10 February, 2020, SEEC concluded there was reasonable cause to believe 13 Councilmember Sawant had committed material violations of the Seattle Ethics and Elections 14 Codes. Decl. of Lou, Ex. L (Charging Document – Case No. 20-0116-1). Councilmember 15 Sawant is required to certify annually that she has “read and [is] familiar with SMC 2.04.300 16 regarding the use of public facilities in campaigns.” Id. at Ex. M (Councilmember Sawant’s 2020 17 F1 Form); see also id. at Ex. N (discussing Seattle Election and Ethics Commission 18 investigations into Councilmember Sawant’s activities). Although SMC 2.04.300 prohibits 19 elected officials from “us[ing] or authoriz[ing] the use of any of the facilities of a public office or 20 agency, directly or indirectly . . . for the promotion of or opposition to any ballot proposition,” 21 SEEC filed charges that Councilmember Sawant had used her office to host events and office 22 resources to publish information in support of a ballot initiative to tax local companies. SMC 23 2.04.300. 24 In addition, the PDC determined that Councilmember Sawant violated RCW 42.17A.235 25 for failure to file timely C-3 and C-4 reports regarding her Tax Amazon 2020 campaign. Decl. of 26 Lou, Ex. O. PDC staff formally warned the Tax Amazon 2020 committee for its failure to 27 register and timely file the statutory contributions and expenditure reports. Id. Davis Wright Tremaine LLP BRIEF - 12 L AW O FFICE S 920 Fifth Avenue, Suite 3300 Seattle, WA 98104-1610 206.622.3150 main · 206.757.7700 fax 1 Taken as true, these facts adequately allege that Councilmember Sawant violated city 2 code provisions and state laws prohibiting the use of public facilities in support of ballot 3 initiatives and state laws requiring public disclosure of campaign funds. See 4 RCW 42.17A.635(4) (prohibiting elected officials from using “any of the facilities of a public 5 office or agency, directly or indirectly, in any effort to support or oppose an initiative to the 6 legislature.”); SMC 2.04.300 (prohibiting elected officials from the using “any facilities of a 7 public office, directly or indirectly, for the purpose of assisting a campaign for election of any 8 person to any office or for the promotion of or opposition to any ballot proposition.”); RCW 9 42.17A.235 (requiring “each candidate or political committee” to file a report with the 10 commission that complies with RCW 42.17A.240); see also WAC 390-16-205 (requiring 11 reporting of certain expenditures made on behalf of a candidate or political committee). 12 Councilmember Sawant’s violations of the city code and state law are “unlawful act[s]” 13 constituting malfeasance. See RCW 29.82.110(1)(b). Councilmember Sawant’s knowing failure 14 to comply with these laws further constitutes a violation of her oath of office. See 15 RCW 29.82.110(2). 16 17 IV. CONCLUSION Because the charges against Councilmember Sawant are factually and legally sufficient 18 and the Ballot Synopsis adequate, Petitioners ask the Court to certify and transmit the ballot 19 synopsis to the county auditor, so that the petition might move forward in the process. 20 DATED this 11th day of September, 2020. 21 Davis Wright Tremaine LLP 22 By __s/ John McKay __________ John McKay, WSBA # 12935 Chris Morley, WSBA # 51918 Jordan Harris, WSBA # 55499 920 Fifth Avenue, Suite 3300 Seattle, WA 98101 Telephone: (206) 622-3150 Fax: (206) 757-7700 E-mail: johnmckay@dwt.com chrismorley@dwt.com jordanharris@dwt.com 23 24 25 26 27 Davis Wright Tremaine LLP BRIEF - 13 L AW O FFICE S 920 Fifth Avenue, Suite 3300 Seattle, WA 98104-1610 206.622.3150 main · 206.757.7700 fax CERTIFICATE OF SERVICE I hereby certify that on the date noted below I caused the foregoing BRIEF to be ?led with the Clerk of the King County Superior Court via the King County eFiling Application, and true and correct copies of the same to be delivered to the individuals noted below as follows: Jennifer Atchison El Hand delivery Daniel T. Satterberg Facsimile transmission KING COUNTY PROSECUTING OFFICE Overnight delivery 900 King County Administration Building El First class mail 500 Fourth Avenue Electronic mail Seattle, WA 98104 E-mail: iennifer. atchison@kingcountv. gov Dmitri Iglitzin Hand delivery Danielle Franco-Malone El Facsimile transmission BARNARD IGLITZIN LAVITT LLP Overnight delivery 18 Mercer Street, Suite 400 First class mail Seattle, WA 98119 Electronic mail Email: iglitzin@workerlaw.com franco@workerlaw.com Executed this 11th day of September, 2020, at Seattle, Washington. A .1 i i Tammy Miller Davis Wright Tremaine LLP OFFICES BRIEF - 14 920 Fi?h Avenue, Suite 3300 Seattle, WA 98i04?l610 206.622.3150 main - 206.757.7700 fax