MARYSVILLE — In the wake of a Snohomish County Superior Court judge's recent ruling in favor of Cedar Grove Composting, both the city of Marysville and the Marysville-based Citizens for a Smell Free Snohomish County have disputed claims that the citizens' group and its campaign against Cedar Grove were spearheaded by the city and its consulting firm, Strategies 360.
On Monday, Sept. 9, Judge Richard Okrent ordered the city of Marysville to pay a penalty of $143,740 for violations of the state public records disclosure laws to Cedar Grove, which had sued the city of Marysville for withholding emails that were exchanged between the city and Strategies 360 on the subject of Cedar Grove, and that the city had claimed were protected by attorney-client privilege because they included discussions of legal strategy.
According to city of Marysville Chief Administrative Officer Gloria Hirashima, the city released those records to Cedar Grove before its lawsuit, on the recommendation of a public records attorney whom the city had solicited for a second review of the material. However, not only did Okrent rule that the 15 emails which the city had withheld from Cedar Grove's public disclosure request were not protected by attorney-client privilege, but he also ruled that the city should have turned them over sooner.
"[The city of Marysville] cannot unreasonably delay the production of public records and must instead conduct a reasonable search to locate responsive documents," Okrent wrote in his order granting the plaintiff's motion for summary judgement regarding penalties. "To do otherwise violates Washington law."
Okrent further ruled that the city should have disclosed emails pertaining to Cedar Grove that were sent internally within Strategies 360, citing the city's own description of Strategies 360 as the "functional equivalent" of a Marysville employee, a rationale which nonetheless caught Hirashima by surprise.
"It never even occurred to us to obtain their private business records," Hirashima said. "We never held those records. They were never in our possession. We have hundreds of contracts with vendors, and we're not aware of any city keeping such records. This ruling is a huge shock."
"The notion that Strategies 360 was an employee of the city, or that our private records belong to the city or anyone else, is ridiculous," said Paul Queary, vice president of communications for Strategies 360, who went even further than Hirashima in voicing his dismay with the ruling, by describing Okrent as "a rogue judge, rewriting the Public Records Act," and by accusing Cedar Grove of a campaign of "bullying" its opposition, to distract from its documented odor violations.
By contrast, Okrent wrote that the 173 records relating to Cedar Grove which were generated by Strategies 360, but not shared with the city, appeared to be part of "a practice of not forwarding documents created by Strategies during its engagement on to Marysville in order to attempt to insulate those documents from the reach of the [Public Records Act] Requests, and to provide Marysville with 'plausible deniability' of Strategies' activities."
"These records prove that city of Marysville officials and the city's PR firm [Strategies 360] orchestrated a complex and far-reaching campaign against Cedar Grove, a campaign funded by the public's tax dollars," said Susan Thoman, vice president of corporate development for Cedar Grove, who noted the city's refusal to participate in a third-party study by the Puget Sound Clean Air Agency, to determine whether the odor might be caused by 13 other potential sources, including the city's own wastewater treatment plant. "Marysville citizens paid tens of thousands of dollars to a private PR firm to fabricate and manufacture stories, create misleading flyers, and compose citizen letters that were used to create negative press stories, incite citizen lawsuits and discredit Cedar Grove without addressing the core issue — the actual source of the odors in our community."
Okrent's ruling did indeed determine that Strategies 360 assisted Mike Davis, founder of Citizens for a Smell Free Snohomish County, "with virtually every aspect of his campaign against Cedar Grove, including drafting the communications later issued by Mr. Davis and directing many aspects of his activities, including activities directly supportive of Marysville's political objectives in its dispute with Cedar Grove."
"This is a city that tried to do right by its citizens," Davis said. "Any implication that our group was formulated or run by the city is absolutely preposterous. We went to the city because the odor was too much to bear, and they did everything in their power to help us out. We shouldn't persecute a city that's actually trying to help its citizens."
Hirashima agreed with Davis that the city had not manufactured the opposition to Cedar Grove, and that the citizens had approached the city about the odor, rather than the reverse.
"They came to us, with hundreds of signatures in hand, and asked us to respond," Hirashima said. "There seems to be an underlying criticism that the city came to its citizens' aid, but local government is inundated with requests from citizens, and especially when such a huge number of people are asking for our support, we view that as our job."
Snohomish County Superior Court Judge Richard Okrent's ruling: