"Hacked" phone, trashed phone, new phone become excuses for officials failing to disclose records

Clark County Sheriff's Office investigating complaints that three Longview City Council members and state Sen. Jeff Wilson broke state open records law

The Clark County Sheriff’s Office confirmed Monday that it is investigating three Longview City Council members and state Sen. Jeff Wilson for possible violations of the state Open Public Records Act.

“I can confirm that the Clark County Sheriff’s Office has been given this and initiated an investigation. I don’t know an exact timeline of when we started, it but it sounds like it was assigned a couple of weeks ago,” Sgt. Christopher Skidmore, a spokesman for the sheriff’s office, said by email Monday.

“It also appears that there is a large amount of information and records to go through as part the investigation, so it would likely be at least several weeks at the earliest” before the probe concludes, Skidmore added.

Clark County is investigating complaints filed by Longview resident Thomas Samuels, who submitted them this spring to Cowlitz County Sheriff Brad Thurman and Longview Police Chief Robert Huhta. Thurman and Huhta last month asked Clark County to investigate the complaints to avoid potential conflict of interests, Huhta said by phone Monday.

The investigation is focused on whether Wilson and council members Kalei LaFave, Erik Halvorson and Spencer Boudreau and Sen. Wilson fully complied with or thwarted multiple public records requests Samuels filed early last year.

Samuels’ prodigious spadework on this case reveals that Wilson, LaFave and Halvorson all claim to have had cell phone issues early last year that prevented them from fully disclosing public records.

Samuels is one of three plaintiffs who have sued LaFave, Halvorson, Boudreau and Councilman Keith Young for allegedly violating the state open meetings law when they fired City Manager Kris Swanson without cause in March last year and hired retired city Police Chief Chief Jim Duscha to replace her on an interim basis.

Two laws are in play here. The state Open Public Meetings Act (OPMA) and the state Public Records Act (PRA).

The civil suit filed under the open meetings law alleges that the four council members illegally colluded outside of public meetings to arrive at decisions about Swanson, Duscha and other matters. Samuels has used the open records law to track council members’ communications and obtain evidence to bolster that civil case. He is seeking criminal charges because he contends the officials have not complied with his records disclosure requests.

Samuels, 47, has spent hundreds of hours filing, tracking and then analyzing results from multiple public records requests. The requests were for discussions of a wide variety of topics, including Swanson, Duscha, the Hope Village homeless project, legislative budget requests and Assistant City Manager Ann Rivers.

Disclosures to Samuel’s records request already have shown hundreds of phone calls, emails and text exchanges among the council foursome during the weeks preceding their action to boot Swanson. That level of one-on-one communication outside council meetings is highly unusual. Samuels calls it “unprecedented.”

However, there is conclusive evidence that the council members have not disclosed all communications, Samuels said, calling it “maddening” that the officials are not obeying state law they have sworn to uphold.

“That’s life in the MAGA ethos,” he said, in which adherents of Trumpian politics continually flout the rule of law.

Boudreau and Halvorson are staunch conservatives. Neither they, LaFave nor their attorneys responded to questions and requests for comment emailed to them Wednesday morning.

Samuels, a former social worker who now works as a solo construction contractor, has submitted reports to law enforcement documenting what he believes are felony violations of the Open Public Records Act.

Under the state law, “every person who shall willfully and unlawfully remove, alter, mutilate, destroy, conceal, or obliterate a record, map, book, paper, document, or other thing filed or deposited in a public office, or with any public officer, by authority of law, is guilty of a class C felony and shall be punished by imprisonment in a state correctional facility for not more than five years, or by a fine of not more than $1,000, or by both.”

Penalties can also range up to $100 per day per violation.

Samuels faces an uphill battle.

It appears that no one has ever been prosecuted for a felony for records violations, said Rowland Thompson, executive director of the Olympia-based Allied Daily Newspaper group.

The Thurston County Sheriff’s office has recommended that former Woodland Mayor and Washington State Patrolman Will Finn be charged with a felony for allegedly erasing public records from his cell phone. It was not clear Thursday whether charges have been filed.

In practice, consequences for those who ignore or violate the law have been few or light, according to attorney Michele Earl-Hubbard, writing for The Washington Coalition for Open Government.

For example, it is a felony to alter or destroy a record — an allegation asserted in some of Samuels’ complaints. Yet prosecutors have been reluctant to apply criminal charges.

In one particularly noteworthy case, then-Seattle Mayor Jenny Durkan and other city officials deleted tens of thousands of text messages exchanged during protesters’ lengthy occupation of an area on Seattle’s Capitol Hill in 2020. A judge in a civil case found that the officials’ excuses “strain credibility.” Durkan, for example, claimed she dropped her phone in water while strolling on a beach. Yet the King County prosecutor declined to file criminal charges, according to Earl-Hubbard.

(For more about this topic, see https://www.washcog.org/perspectives-13-few-consequences-for-those-who-ignore-transparency-laws#:~:text=Under%20Vance%20and%20O'Neill,be%20prosecuted%20by%20the%20government.

Earl-Hubbard is representing Samuels and fellow plaintiffs Mike Wallin and John Melink in the OPMA suit against the council members.

Here’s a brief rundown of Samuels’ documentation of alleged public record violations he submitted to law enforcement:

Boudreau’s missing phone calls

Boudreau, who also serves as mayor, failed to divulge phone calls with council members LaFave, Young and Halvorson, 19th District state legislators (Wilson, and Reps. Jim Walsh and Joel McEntire) and others from January 1, 2024, through March 17, 2024, Samuels said.

(While phone records do not contain transcripts of conversations, they can show a pattern of communication and collusion, especially when paired with the content of text messages and emails.)

Boudreau submitted some text messages but declared in sworn statement that he had no records responsive to most of Samuels’ requests. However, records that Samuels received from Halvorson, LaFave and Young show “clear evidence showing that Mayor Boudreau was party to at least 124 phone calls with these three fellow members.”

Samuels tried to call Duscha’s attention to Boudreau’s omissions. The city clerk, answering on Duscha’s behalf, emailed Samuels last June 24, noting the city was dealing with staff shortages and a high volume of records requests. The email apologized that the processing time “does not meet your expectations.”

Samuels considered the note a dodge, noting in a follow-up email on June 26 that he’d already been told the requests were closed. The problem was not timing or delay, but Boudreau’s failure to comply, he noted.

“Mr. Duscha, as the city’s interim top official, you now bear the responsibility for ensuring the interests of the city are protected, not the council majority that hired you,.” Samuels wrote. He reminded the acting city manager that the city’s contract attorney had reminded the city that officials have a “clear and unmistakable obligation” to search for and disclose requested records.

Duscha never replied, Samuels said.

In his note to law enforcement this spring, Samuels said, “Mayor Boudreau’s failure to honestly respond to public records requests has revealed disturbing shortcomings and glaring deficiencies in the city of Longview’s process for ensuring its officers diligently comply with the public records act ( PRA).” Boudreau, he said, has made a “mockery of the solemnity of the PRA,” a phrase Samuels also applied in complaint about Halvorson.

The City “is obligated to complete an “adequate search” under the Public Records Act when we receive any request,” according to an email the city sent to me on Wednesday.

“When a request seeks documents that are in the sole possession of an employee or elected official, the City is obligated to direct the employee or elected official to conduct a search of the records in their possession, and to complete and sign a Declaration/Affidavit that attests to the search. This is required for each and every request we receive; we are required to obtain Declarations/Affidavits for each search, and they must be specific to that request.”

The statement noted that the city and the employee/elected official “are at risk of monetary liability under the PRA if a Declaration/Affidavit is not obtained, detailing the search performed.”

The statement noted that Halvorson, LaFave, and Young took training on public records retention and meetings soon after they were elected in November 2023. Boudreau had the training in 2022.

Boudreau is facing re-election this year and is opposed by Wayne Nichols and Marianne Chambers. LaFave, Halvorson and Young were elected in 2023 and are not up for re-election until 2027.

Halvorson’s “new phone” explanation

While Halvorson disclosed “what are believably complete” phone call records for January 2024, he appears to be deliberately concealing all of his responsive phone calls records for February and March 2024, Samuels asserts to police.

LaFave and Young reported 64 calls with Halvorson over those two months. Considering that Boudreau did not disclose any phone calls, “a reasonable person will conclude there are likely dozens more phone calls between (Halvorson) and Boudreau in the months of February and March that each of them are concealing from the public,” Samuels writes.

Halvorson reported that he stopped keeping a phone log after January 2024 because he got a new phone “and the January phone log document is the only one he has.” But Young’s call records show that Halvorson continued to use the old phone. Samuels called Halvorson’s excuse “ludicrous” and “absurd” and likened it to a tax evader eliminating his tax burden by declaring he has no income.

LaFave claims phone was hacked

Conspicuously missing from LaFave’s records disclosures to Samuels are text exchanges among her, Boudreau and Sen. Wilson (disclosed by Boudreau) regarding a mixup on a legislative funding request for Hope Village and homeless program funding in late January 2024. (The Plaintiffs in the OPMA suit alleged that the council foursome was trying to embarrass Swanson over a lobbyist’s mistake. Wilson is an ally of LaFave.)

Samuels reports that LaFave told the city records clerk in late February 2024 that her phone had been hacked and so she got a new one. But on March 5, the clerk learned from city IT personnel that the phone had not been hacked but had been “spoofed.” (Spoofing involves sending email messages with a fake sender address.) They did not say her phone had been hacked or advise her to replace it. Nevertheless, on March 24, LaFave told the clerk she no longer had the old phone.

State law obligates officials to preserve potential records and suspend all ordinary destruction and recycling procedures of communications equipment.

However, when LaFave finally signed a declaration on April 2 stating she had completely complied with Samuels request records, it made no mention of the “hacked” phone.And she never did disclose the January 2024 text exchanges with Boudreau and Wilson, Samuels said.

“It appears that Longview Mayor Pro Tem LaFave may have concocted a false story about her phone being “‘hacked” as a dilatory (delaying) tactic to thwart the city clerk’s staff from carrying out their duties,” Samuels said in his report.

Wilson tosse the phone in trash

Samuels’ complaint against Wilson also focuses on the records request for discussions about the January 2024 legislative funding request for Hope Village.

As I reported on May 24, Wilson initially asserted that he had no records of the conversation. Samuels on August 22 filed a complaint against Wilson with the Legislative Ethics Board, saying he had “incontrovertible proof” that Wilson had communicated with the council members.

Wilson then told ethics board investigators “he could not respond to the public disclosure request because he no longer had the phone that would have contained the texts messages. When asked when he got a new phone, (Wilson) replied that it was sometime in March of 2024. When asked what happened to his old phone, he indicated that he threw it in the garbage.”

Wilson, a member of the Legislature’s “sunshine committee” on open government, should have known he was not supposed to junk a phone that could contain public records. Nevertheless, the ethics board cleared Wilson of ethical wrongdoing, a conclusion Samuels called “as farcical as it is inexplicable” in his complaint to law enforcement.

Wilson declined to speak about the situation when I texted him questions last month.

Legal fees

Against complaints that they had a conflict of interest, the defendant council members last year voted for the city to pay their defense costs in the civil case accusing them of violating the state open meetings law.

However, that action would not cover the costs of defending them should they be charged with criminal offenses. It was not immediately clear whether they could vote to put the city on the hook for them.