The state Legislative Ethics Board has dimissed a complaint by a foster mother that state Sen. Pam Roach released confidential information -- the foster mom's identity -- and abused her legislative power in a custody case.
Still, the board concluded that Roach and a legislative aide apparently hired at state expense solely to work on this single issue "resorted to questionable tactics" in dealing with the foster mom. A website by the legislative aide, giving contact information for the mother "could have resulted in a dangerous situation for the foster mother and the child." If the website had been publicly paid for, the board would have concluded that Roach broke state ethics laws. But the legislative aide apparently did it on his own, the board said.
Starting last summer, Roach began posting information on her personal blog about a custody battle involving a young girl. The girl had been placed in foster care, and her grandparents feared that they'd lose contact with her, felt state officials were ignoring a law that says that children should be placed with relatives when possible, and they felt the girl wouldn't be well cared for by the foster mother.
From here, I'll let board attorney Mike O'Connell take over:
(Note: "Complainant" means the foster mom, "Respondent" means Sen. Roach)
3. The foster mother/complainant alleges that much of the blog information about her was untrue and “slanderous” and it was perceived by her as a personal attack. Specifically, she feels that because it was obvious to her that she was the person being written about on the blog that Respondent knew who she was and that her identity was therefore disclosed in violation of the Act.
4. Complainant acknowledges in her complaint, and the investigation confirms, that at the time the complaint was filed her name had not been disclosed on Respondent’s blog.
5. Respondent attended some of the judicial proceedings concerning the minor child. The proceedings she attended were open to the public and anyone in the courtroom was apparently free to take notes. Somewhat conversely, if anyone sought a transcript of testimony they had heard they would be advised by court personnel that such a transcript was confidential. Notwithstanding the court personnel’s position, one Assistant Attorney General informally opined that the Respondent could in fact have a transcript of certain testimony, concluding it was not part of the protected “record” and the transcript was provided. The complaint thrusts the Board into a sometimes allegedly confidential, but sometimes not, environment.
6. Respondent maintains that she learned the name of the foster mother in court. While it is a possibility the name was mentioned in court the explanation is received with skepticism by most of those who were in attendance. On another occasion the Respondent refers to her knowledge on this point as coming from another person.
7. By June, 2008 the Respondent had established contacts within DSHS relative to the case of the minor child. If not by this time then certainly by July 10, the Respondent knew the identity of the foster mother. At one point, no later than September of 2008, the foster mother’s name was included, perhaps inadvertently, in copies of e-mails provided to the Respondent by DSHS personnel.
8. Complainant acknowledges that once her name was known to Respondent the information she complains of could be discovered through the internet. She cites age, marital status, employment, and the existence of a ten year old protection/restraining order she obtained against another as examples of information which flowed from the knowledge of her name. It is this information she claims is misleading if not slanderous or lies.
9. The complaint was received by the Board on October 2, 2008. On October 6, and pursuant to the Act, Respondent was mailed a copy of the complaint and documents submitted in support thereof. As required by the Act the complaint included the name, address and phone number of the Complainant. In addition, a standard cover letter from the Board was sent to Respondent which explained the complaint process and advised that the Act imposed no legal obligation on Complainant or Respondent to keep the complaint information confidential.
10. The Respondent referenced receipt of the complaint on her blog on October 15. Although she still refrained from naming the foster mother and the child she did provide a link to another site which she acknowledged contained that information. This linked site was extremely critical of the foster mother’s life, her associations, and her ability to safely care for the child. The web site was savealexisnow.com.
11. Savealexisnow.com was registered by Christopher Clifford on July 14, 2008. According to senate payroll records Clifford was employed as a Legislative Assistant to Respondent from July 1, 2008 through July 18, 2008. Clifford continued as a de facto representative of the Respondent on this case beyond his official term of employment and he is often referred to by Respondent as the personal investigator she had hired.
The board concluded that Roach could have learned the foster mother's name "from a number of sources including contacts within state government or, perhaps but less likely, from proceedings in the courtroom." But it said that there's no evidence that Roach disclosed the mother's name until after the mother filed the ethics complaint -- which cannot be filed anonymously, and which Roach had no obligation to keep confidential.
As for abusing her office, the board concluded that Roach was within her rights as a lawmaker to use her clout and staff to intervene on the grandparents' behalf:
(Roach) utilized senate committee staff, senate caucus staff, and her legislative assistants over a period of several months in efforts to assist the grandparents. Respondent also utilized numerous other public resources including e-mail, stationery and phones. Respondent was always clear that she was involved as a Senator and was bringing the weight of her office into the dispute.
...Assisting constituents through advocacy, under circumstances identified earlier in this opinion and in precedents of the Board, is within the scope of employment and official duties of a legislator.
That "advocacy" included directly contacting judges involved in the case, something that the board called "very unusual and uncommon." But it said state ethics law didn't directly address this issue.
Roach's actions, the board concluded, included these:
1. Respondent attended four or more court hearings as Senator Roach. She was permitted to speak on at least one occasion and perhaps two.
2. Six e-mails were discovered that were sent by Respondent in July to the judges presiding over the dependency and termination proceedings. These were ex parte contacts. The Court Appointed Special Advocate (CASA), the attorney for the CASA, and others in the courtroom complained to the judge about the ex parte contact, the interference of the Respondent and the misinformation being provided by Respondent.
3. Over a period of many months Respondent criticized DSHS, DSHS employees, the foster mother and the CASA on her blog. No evidence was discovered that public resources were used to establish or maintain the blog but some of the information found there did come from Respondent’s use of office and public resources.
4. The CASA Program Manager for King County stated that Respondent phoned her on July 9, and (a) asked her if they receive state funds, (b) demanded they fire the CASA in the case, and (c) threatened to engage in a media campaign.
5. Respondent phoned a DSHS employee who documented the call in an e-mail to a DSHS official. The e-mail states the Respondent requested DSHS to write a letter asking that the CASA be removed and stated “I will be talking to Dino Rossi and Val Stevens about this case and you know they will use it in their elections.”
6. Respondent phoned police about the child’s day care center and the alleged failure to report the child’s black eye. A police officer followed up with the day care. Respondent was denied the opportunity by the court to speak to the black eye issue. DSHS followed up on the allegation and expressed its belief the reporting issue was properly conducted and documented.
7. On September 8, with a copy to Christopher Clifford, Respondent e-mailed DSHS personnel and wrote “I would like Alexis removed from the foster adopt parent and placed with a relative.”
8. On September 9, Respondent sent an e-mail to a DSHS official and others requesting answers to a series of questions and stating “If you have nothing to hide then you will answer. If you hide behind privacy then I am sure we can address this publicly, on the Sunshine Committee.”
9. In addition to the examples noted above, there are numerous and frequent examples of communications between the Respondent and various state officers and employees. On some occasions the Respondent repeated demands for certain action and most always there was a list of questions she wanted answered. Respondent generally linked these demands and inquiries to the issue of the rights of relatives in juvenile proceedings.
10. Respondent hired Christopher Clifford as her Legislative Assistant (LA) for three weeks in July, 2008. No evidence of the LA working on any issue other than the one on behalf of the grandparents was discovered. The LA was assigned a SCAN authorization number and the senate records do not show any use until his last day of official employment. There is no record that he used the e-mail account set up for assistants in Respondent’s legislative office. With the exception of on-campus meetings held in connection with this one case there was no record the LA had a presence on campus. Respondent did not have a legislative office in her district.
11. Clifford continued to work on the grandparent’s constituent case for several months after he left the senate payroll. Respondent referred to and represented him as “my private investigator” or “the private investigator I hired.” He attended meetings with state officials as a representative of the Respondent after he was off the senate payroll. He exchanged case information with Respondent and Respondent’s new LA, as well as others, after he was no longer a state employee. On August 23, Respondent sent an e-mail to her new LA in which she said “Chris and I will feed things to you to have copied and then put into folders.”
12. At one point Clifford was directed by Respondent to conduct surveillance at the day care in an apparent effort to see if a scheduled visit between grandparents and the child was going to take place as planned or promised. There are e-mails from Respondent to DSHS complaining that an agent of the agency who was supposed to be present during the visit was late and this cost the grandparents time with the child.
13. In September, 2008 and while still working as the “private investigator” hired by Respondent, Clifford attempted to file a declaration with the court and the court declined to accept it. In his declaration he attacks the “propriety” of the foster mother and advocates for change. His declaration repeats the same allegations about the foster mother found on Respondent’s blog.
14. After the complaint was received by the Respondent in early October she provided a link from her blog (on October 15) to the website registered by Clifford. This website revealed the name of the foster mother and repeated many of the allegations against her. It also revealed the child’s first name. Respondent warned her readers that the link would provide names. This linked website urges readers not to go the foster mother’s home but then provides her address. The website also asks that readers not look up the foster mother’s phone number and “start calling her at home.”
15. Complainant believes she can identify Clifford as one of two men who came to her home after the complaint was filed and before October 23 (when she referenced this visit in a letter). Complainant stated she received a call on her cell phone inquiring about a car for sale. She had no car for sale and believes the call was a pretext.
16. Complainant states the personal attacks on Respondent’s blog and Clifford’s website increased after she filed the ethics complaint.
17. There is no evidence to determine whether or not Clifford created his website using state resources.
18. In November, DSHS learned from Complainant that two men “have been spying on her” and the agency provided for surveillance cameras at her residence.
Finally, I'll include this summary:
Advocacy on the part of the Respondent carried over to the courtroom. To the extent Respondent utilized her office or public resources to intervene with the court this presented a very unusual and uncommon involvement by a legislator in a judicial proceeding. There is no provision in the Act which directs that otherwise permissible legislative advocacy on behalf of constituents must cease at the courthouse steps. The Separation of Powers Doctrine, which addresses the relationship between the Judicial, Legislative and Executive branches of government, is based upon constitutional principles and the Act does not confer jurisdiction on the Board to rule on constitutional issues. A judge presiding over a case in which a legislator seeks standing or input in the proceedings is the appropriate arbiter of whether that legislator will be heard and if so under what conditions. If the Legislature should choose to address the question of legislator’s use of office and public resources to unilaterally involve themselves in judicial proceedings that would of course be its prerogative.
The Respondent’s demands for information and action from DSHS were driven by her perception and the perception of her constituents that the agency was not following the law relative to the rights of the constituents. Those perceptions were not unreasonable. Under these facts, Respondent’s demands and tone and tenor, while perhaps not those most commonly exhibited by other legislators, were not prohibited by the Act.
Respondent’s use of her Legislative Assistant raises questions about the role of staff. A legislative staff person is a public resource within the meaning of the Act and the facts suggest that this resource was used, perhaps exclusively, to play the role of a private investigator and to carry out that role in ways most foreign to common expectations regarding the role of legislative assistants. The investigation leads to the following conclusions: the LA conducted surveillance of a daycare center; visited the home of the foster mother under less than forthright pretenses; established a website directed at the foster mother during the time he was working for the Respondent as a legislative employee and eventually posted information on that site which he obtained while an employee or otherwise as the agent of the Respondent; was referred to and portrayed as an emissary of the Respondent long after his official term of employment; and attempted to intervene with the court on behalf of Respondent’s efforts in that forum. It is clear that his actions in whole or in part were performed at the direction of or with the tacit approval of the Respondent. While assisting Senators with constituent work is a duty of employment as defined in the Senate’s job description for LA’s, we seriously question the path taken by this assistant at the direction of the Respondent and would hope that the Senate would review that job description to determine if it is being implemented in the expected fashion.
The foster mother is hurt and angered by what she perceives as personal attacks directed toward her by a state legislator. These feelings are not unreasonable but even though the foster mother/complainant recognized herself as the person being discussed in the Respondent’s blog there are no facts which show her identity was thus revealed to anyone who did not already know who she was. That did not occur until after she filed this complaint. She considers much of what was posted there as lies and “slander.” If that is the case, that is if the foster mother seeks to prove some interference with her employment relationship with DSHS, or libel through the remarks posted by the Respondent on her personal blog site and/or the site she linked to following the filing of the complaint, the appropriate forum would be a courtroom.