Judge hits Mesa with budget-breaking penalty for Public Records Act violations

The city of Mesa faces paying more than twice its annual budget to settle a state Public Records Act dispute with its former mayor, Donna Zink.

Franklin County Superior Court Judge Bruce A. Spanner assessed a $353,000 penalty against the tiny farm city for 33 separate infractions of the state records law during a hearing Tuesday.

The Public Records Act requires public agencies to respond in a timely fashion to requests for public records or face financial penalties for violations. It is designed to empower citizens to monitor government.

Spanner assessed an additional $18,000 in legal fees, adding to more than $100,000 already paid.

Tuesday’s penalty decision was Zink’s second public records win in the span of a month. In early April, the Washington Supreme Court ruled in her favor in a separate case seeking the release of the Washington State Patrol’s sex offender database. The justices agreed the information is not protected by the records act.

Spanner left the door open Tuesday to potentially lower the penalty.

He discovered he erred when he originally computed the penalties, arriving at a figure of nearly $265,000. It turned out the spreadsheet program wasn’t properly programmed and failed to tally every figure.

When the bug was corrected, the sum was closer to $353,000. Spanner worried about the effect on a community of 500 with general fund budget of about $115,000 per year.

“At $265,000, (the penalty) makes sense,” he said. “The higher total, I’m a little unsettled with.”

He entered the higher penalty in the court record but reserved the right to amend it later.

That’s legitimate, said Toby Nixon, a Kirkland City Councilman serving as president of the Washington Coalition for Open Government.

“It’s reasonable for a judge to think about the impact on an agency,” Nixon said.

It amounts to more than $700 per resident. There is no insurance coverage available for public records-related litigation, which means Mesa will pay the final amount from its general fund budget.

Zink said she was pleased by the penalty but not the legal fees award.

Ten years ago, she said would have settled for a far lower amount and access to the many records she sought in her campaign to bring what she considered overly aggressive city code enforcement practices to light. She rejected a $125,000 settlement offer after court Tuesday.

Mesa’s attorney, Ramsey Ramerman of Everett, will petition the court to lower the penalty. The city likely will appeal the penalty, triggering a fresh round of court activity, he said.

Records campaign began in 2003

Zink’s public records campaign began in 2003 when she began requesting documents related to an upswing in fines for code issues. She sought dozens of records, ranging from ordinary city council minutes and code violation reports to the resignation letters of various public officials under the records act.

The city routinely delayed releasing records beyond the legal limit and often blacked out information that is public under the law, Spanner ruled. At one point, it limited her time at city hall to an hour per day and told her to have her attorney submit requests to a city attorney.

Spanner said Mesa may not use the argument that it received bad legal advice as an excuse.

“I have seen too many agency attorneys turn the Public Records Act on its head and use it as a way to avoid public disclosure. We’re driving government decisions further underground,” he said.

Zink said the city brought the lawsuit on itself when it battled her records requests.

“They said, ‘Take us to court.’ So I took them to court.”

The city won the initial round, casting Zink as a crank who flooded city hall with unreasonably burdensome records requests. She won a retrial on appeal.

Tuesday’s court proceedings stemmed from a second appeal, which resulted in the court revisiting penalties.

Ramerman, a public records advocate, admitted Zink was inappropriately vilified as the case worked its way through the system. The judge’s assessment of penalties validated the legitimacy of her requests, he said.

But he fears the Mesa case could provide fuel to public records act critics who lobby lawmakers to weaken the law or even eliminate penalties.

That’s unlikely, said Nixon, of the open government coalition. Lawmakers have responded to high-dollar penalties by giving judges discretion to weigh the impact of their decisions.

“I don’t think (Mesa) will create pressure on the Legislature to alter the penalties,” he said.

Nixon had not yet reviewed the Mesa penalty. Relative to Mesa’s budget, it’s an eye-popping number, he said.

His city’s budget is roughly 1,000 times that of Mesa’s. A comparable penalty for Kirkland would be around $350 million.

“I would probably argue against that,” he said.

Mesa Mayor David Ferguson had no comment, saying he had not been notified of the outcome as of Tuesday afternoon.

This story was originally published May 10, 2016 at 5:51 PM with the headline "Judge hits Mesa with budget-breaking penalty for Public Records Act violations."