AUTO files ethics complaint and civil suit against the Public Disclosure Commission
Recently, AUTO filed a suit in King County alleging Attorney General Robert Ferguson's political action committee breached the prohibition against using public funds by taking contributions from tribal governments (see details below). Aware the suit was about to be filed, the PDC which had no role or duty whatsoever in the matter rushed to publish a 14 page letter claiming Friends of Bob Ferguson did not breach campaign laws for taking the contributions from tribal governments. The letter relied upon commentary presented to the PDC from legal representatives of tribal governments and the state Democratic Party. All the evidence, cites, and exhibits provided the PDC by AUTO was redacted. The letter was carbon copied to Friends of Bob Ferguson and then transmitted out of public view to representatives of tribal governments. An reasonable reading of the letter finds its purpose was to use the public facilities and staff at the PDC to support a candidate or group of candidates in an election which is prohibited under the campaign laws enforced by the AG and PDC. As a result, AUTO filed a complaint for ethics violations by the PDC with the Executive Ethics Board.
In addition, AUTO has filed a civil suit in Thurston County alleging the PDC violated the Open Meeting Act (OMA) and the Administrative Procedures Act (APA) which are the mainstay statutes providing public transparency over governmental actions. AUTO's review of public records found PDC created and authorized the letter in a meeting wherein the subject was not placed on the agenda denying any public input into the action contrary to the OMA. Issuing a ruling on whether or not a violation occurred requires an investigation process with a hearing in accordance with the APA. No such process was used. When a department issues an interpretative ruling or policy, once again the APA requires a public hearing process and procedure which likewise was totally ignored by the PDC in its rush to intervene on behalf of Friends of Ferguson and others.
AUTO finds the behavior of the Public Disclosure Commission to be extremely disturbing. The PDC primary purpose is to provide public transparency in elections and enforce the campaign laws of the state of WA. The partisanship displayed by the PDC is simply unacceptable and if allowed to continue, will further diminish the public's faith in our electoral process.
Update: AUTO sues state Attorney General Robert Ferguson's political action committee for taking contributions from Native American tribal governments
On July 7, 2016, AUTO sued the political action committee (PAC) "Friends of Bob Ferguson" that finances Ferguson's run for the state wide office. The issue is the Attorney General's PAC historical acceptance of campaign contributions from tribal governments. Not alone, tribal governments have issued millions of dollars in contributions to a wide array of candidates including Governor Inslee's campaign and scores candidates in the legislative races. The complaint can be viewed here.
The position AUTO takes is WA law makes clear that political candidates in Washington may not use public funds in election activities. RCW.17A.550 states "Public funds, whether derived through taxes, fees, penalties or any other sources shall not be used to finance political campaigns..." A tribal government is recognized by the federal government and WA state as a government and receives hundreds of millions in funding from state or federal coffers that are collected from non-tribal citizens and taxpayers. The tribal governments levy and collect taxes from non-tribal citizens through enterprises such as casinos, hotels, malls etc. Just as in the case with the state of WA lotto program and local cities and counties with property leases, funds controlled by a tribal government equates to "public funds". The statue does not exempt tribal governments from the prohibition. Since all funds controlled by a government are public funds, the term is inclusive of all governments, tribal or non-tribal. Since the violation occurred outside a reservation when Ferguson deposited checks in his bank account in Seattle, tribal sovereignty is not being challenged and is not a factor. While Ferguson's PAC is "running lead" on this issue, AUTO seeks a court ruling that will affect all candidates and initiative campaigns cashing checks from a tribal government.
Further down in this column, the journey AUTO took to get to this point is explained in detail. We first started by asking the Public Disclosure Commission to open a rule making process so the issues could be vetted out. At that point, we believed the PDC was a non-biased institution committing to protect the credibility of our state's election. Sadly, we no longer have confidence that the PDC is non-partisan. Those who read further down should understand why we have come to this conclusion.
AUTO initially requested a rule process by the PDC to hopefully avoid pointing any fingers at any one candidate. When the PDC refused our request for a rule making process, our only remaining option was to file a 45 day notice of complaint with the Attorney General's Office and the County Prosecutor where the violations occurred. We did so identifying campaign contributions from the Snoqualmie and Muckleshoot tribal governments to the Attorney General's PAC "Friends of Bob Ferguson" ( here). The Attorney General responded by recusing himself and all the other attorneys under him in state government. He pointed out that the PDC had the option of hiring its own outside legal representatives ( here). Then, the King County Prosecutor deferred to the PDC as having more knowledge on the legal issues. AUTO found itself right back where we started.
At that point, AUTO's members and the citizens of WA state were cut-off from the services of the Office of Attorney General and the Public Disclosure Commission. However, the state law passed by the voters at the ballot box envisioned this could happen. Since neither the Attorney General or County Prosecutor would step up the wire, the statute allows the one filing the 45 day letter of complaint to pick up the ball and sue on behalf of the citizens of the state.
The statute states any damages awarded the prevailing side belongs to the state. A prevailing citizen filer can petition the state for reimbursement of their fees and costs. The complaint seeks treble damages for the state for the intentional actions taken by the PAC, disgorgement of all contributions received in the last 24 months from the tribal governments and an injunction to prevent the Attorney General's PAC from accepting campaign contributions from tribal governments during the upcoming 2016 election cycle.
Update: AG cites conflict of interest over his receipt of contributions from tribal governments
On May 2, 2016, AUTO filed a complaint with the Attorney General for violation of the campaign finance laws of the state of WA which forbids candidates from taking contributions of public funds from governments. The complaint names the political action committee headed up by Attorney General Ferguson himself (Friends of Bob Ferguson) which has received large amounts of direct and indirect contributions from tribal governments.
On May 18, 2016 the Office of Attorney General responded. The Attorney General's Office declines to take action due to the conflict of interest created by his own receipt of contributions from tribal governments. The conflict extends down from the elected AG himself to all the attorneys working for the state under him. Read the response here.
In the response, the Office of AG defers to the King County Prosecutor and the Public Disclosure Commission (PDC) who could take action required by AUTO's filing of the complaint. The state law passed on the ballot by the voters requires either the AG or a County Prosecutor to take action and if neither do, the complainant (AUTO) can assume the powers of the AG and file suit in Superior Court. As a result, if the King County Prosecutor declines to file against the AG's campaign committee, AUTO is free to file according to a previous ruling by the state Supreme Court. As for the PDC, any action it might take is irrelevant to AUTO's right to see the matter litigated by the courts. It is interesting to note that the response doesn't mention this fact.
While past and present Governors, initiative campaigns, and candidates for the legislature have likewise drawn millions in contributions from tribal governments, filing against Mr. Ferguson seemed to present the best opportunity for the public to understand the depth of the conflict of interest that is so readily recognized by non-tribal citizens trying to compete with a tribal government for the attention of elected officials and departmental staff in Olympia. The Governor's own political action committee and other Democratic PACS have recently received $403,410 from tribal governments. The majority of the members of the legislature from both sides of the aisle have likewise received contributions of public funds from tribal governments and the election fund raising cycle is just beginning. Links to the contributions, state law in question, and the actual complaint are located below.
AUTO challenges legality of campaign contributions from tribal governments
AUTO files complaint alleging Attorney General Ferguson's receipt of campaign contributions from tribal governments violates the prohibition against candidates accepting contributions of public funds
On February 1, 2016, AUTO filed a petition requesting adoption of a rule by the Public Disclosure Commission that oversees elections and campaign contributions in state and local elections in Washington State (see details below). The PDC rejected our request and as a result, AUTO's attorney former state supreme court justice Phil Talmadge of the Seattle firm of Talmadge, Fitzpatrick & Tribe has filed a complaint on behalf of the organization with the Attorney General and the Prosecutor in King County. The complaint cites Ferguson's own receipt of contributions from tribal governments when seeking election as the top enforcer of state law as violations of state law and requests a legal complaint be initiated against Ferguson's political action committee "Friends of Bob Ferguson by one prosecutor's office or the other. If neither file a legal action within 45 days, AUTO intends to exercise its rights under the state law to assume the role of the two prosecutors and file a "citizens complaint" on behalf of the state. Read the complaint here.
The issue is the historical use by tribal governments of "public funds" in making political contributions to influence non-tribal elections in Washington state and subsequently, the decisions coming out of the legislative process or the executive branch. State law prohibits candidates from taking contributions from governments with "Public funds, whether derived through taxes, fees, penalties, or any other sources, shall not be used to finance political campaigns for state or school district office."
Earlier, AUTO pointed out to the PDC our belief that these contributions were resulting in hundreds of millions of state taxpayer's dollars flowing out of the state treasury into tribal government accounts. Shared gambling proceeds found in other states with tribal government gambling monopolies were surrendered behind closed doors rather than providing revenue for public schools as intended when Congress passed the Indian Gaming Regulatory Act.
Additionally, AUTO believes an atmosphere of special treatment for tribes at the expense of the other citizens of the state has evolved. Non-tribal citizens are regularly heard complaining about the loss of fishing or hunting opportunities, land use or water rights, and encroachment on to their private property as a result of decisions by state departments including the Department of Ecology, Department of Natural Resources, Department of Transportation, and Department of Fish & Wildlife wherein staff seem compelled to provide prejudicial treatment for tribal interests.
The first reaction of the PDC staff was to prove our point that the contributions by the tribal governments have created an unlevel playing field in state offices for non-tribal citizens. Nearly immediately upon receipt of our petition, the Executive Director and Assistant Attorney General for the PDC consulted with Bill Craig, head of the Governor's Office of Indian Affairs http://www.goia.wa.gov/ . Craig moved quickly to help arrange a meeting between PDC staff and tribal legal representatives. By the time AUTO was invited to a short meeting with PDC staff, it was easy to predict what was going to happen. The end result was the staff convincing the PDC Commissioners to avoid taking any action by refusing our request. The PDC, citing staffing and budgetary constraints, suggested we go to the legislature with the issue.
AUTO was disappointed, but not surprised by the decision of the PDC which resembled a "cut and run" maneuver. As for appealing to the Governor or turning to the legislature, one could hardly envision those arenas would prove a fair hearing on the issue. The Governor's own political action committee and other Democratic PACS have recently received $403,410 from tribal governments (view it here). The majority of the members of the legislature from both sides of the aisle have likewise received contributions of public funds from tribal governments and the election fund raising cycle is just beginning.
The option left AUTO is filing a complaint with the Attorney General for violation of the campaign finance laws of the state of WA (RCW 42.17A). Since the Attorney General has likewise received large direct and indirect contributions from the tribal governments (view here ), choosing to file against Mr. Ferguson himself allows the opportunity to understand the depth of the conflict of interest that is so readily recognized by non-tribal citizens trying to compete with a tribal government for the attention of elected officials and departmental staff in Olympia.
Washington's "Campaign Disclosure and Contribution" statute was passed by initiative vote of the people in 1972. The drafter's seemingly recognized that elected officials could be less than enthusiastic about enforcement if protecting the citizens meant loss of personal financial support and inserted a provision to prevent the powers at be from denying the citizens rights. In the event both Attorney General Ferguson and King County Prosecutor Dan Satterberg fail to file an action within 45 days against Ferguson's political action committee "Friends of Bob Ferguson", the law states: "(4) A person who has notified the attorney general and the prosecuting attorney in the county in which the violation occurred in writing that there is reason to believe that some provision of this chapter is being or has been violated may himself or herself bring in the name of the state any of the actions (hereinafter referred to as a citizen's action) authorized under this chapter." AUTO's complaint includes the required notice of AUTO's intent to exercise this right and move forward if one or the other doesn't file on behalf of the state's citizens .
Additional details on the law and presentation documents used with the PDC process are available below including documentation showing the funds held by tribal governments are taxes and incomes that fall under the definition of public funds. Statements from representatives of tribes asserting gambling proceeds (like the state's lotto), motel/hotel, sales taxes, etc. paid by non-tribal citizens at tribal casinos, gas stations, and other enterprises are taxes paid by the public to a government.
AUTO has filed a petition for requesting adoption of rule by the Public Disclosure Commission that oversees elections and campaign contributions in state and local elections in Washington State (https://www.pdc.wa.gov/). The issue is the historical use by tribal governments of "public funds" in making political contributions to influence non-tribal elections in Washington state and subsequently, the decisions coming out of the legislative process or the executive branch. The request, if granted, would result in the passage of a Washington Administrative Code (WAC) that carries the weight of law.
AUTO's petition explains the concern shared by its members and other citizens that a quid pro quo has evolved wherein tribal governments are inserting tens of millions into political coffers. In return, officials in Olympia elected in non-tribal elections are providing special considerations back that include hundreds of millions out of the state's treasury. An example used is the tribal motor fuel compacts that came on the scene in 2008 that over a decade will flow approximately $354 million in motor fuel taxes into tribal government accounts. Former State Auditor Brian Sonntag confirmed the state has no independent ability to track how the state's fuel taxes are being used by the tribal governments (Sonntag_Compacts_Report.pdf).
The quid pro quo is continuing on election after election and each session that follows. HB 1631 currently moving through the Legislature this session seeks to expand the compacts to tribal governments without a reservation and subsequently, have no tribal roads to maintain. Other measures beneficial to tribal governments are common place. AUTO freely admits that the contributions by tribal governments to elected officials in non-tribal elections seem to be providing an excellent "return on investment" for tribal governments. Unfortunately, the return is delivered at the expense of the state's tax payers, especially those paying the latest increase in fuel taxes passed by the legislature and collected at the pump with each fill-up.
The petition outline's AUTO's legal position that a tribal government imposes taxes on non-tribal citizens and regularly receives taxes collected by the state of Washington and the federal government. All of the non-tax revenue of enterprises operated by these tribal governments also rises to the definition of public funds. Casino revenue to a tribe is in the same category as the lottery proceeds to the state of Washington. As reinforcement of this position, AUTO quotes the statement posted on the website of the Washington Indian Gaming Commission "Gaming revenue is tax revenue for tribal governments." More importantly, candidates, political parties and political action committees supporting or opposing ballot measures in state authorized elections are forbid from taking contributions of public funds "....whether derived through taxes, fees, penalties or any other sources...." (RCW 42.17A).
AUTO's petition spells out the prohibition against using public funds was intended to prevent a larger government entity from using its tax base to influence elections in other jurisdictions. One example is the City of Seattle using its tax base to fund candidates or ballot measures to influence elections in nearby jurisdiction such as the city of Auburn. Additionally, the notion that candidates or political parties can somehow accept contributions from a tribal government due to tribal sovereignty is not supported by law. WA statues may not be enforceable on a tribal government when its operating on trust land within the boundaries of a reservation. However, such is not the case for candidates, political parties, and political action committees involved in Washington elections held outside of tribal juristiction. The historical use of public funds to issue political contributions by tribal governments is no different than an attempt by the state of Oregon or City of Portland to use its public funds to influence an election across the Columbia River in Vancouver, Washington.
Another purpose of the prohibition was the concern that elected officials would exercise control over public treasuries and divert public funds to complement their own candidacy or affiliated political parties. Diverting public funds to a tribal government that then returns a portion back to campaigns or parties of those controlling the diversion "will not pass the smell test". Public funds do not somehow ripen into non-public funds upon receipt by a tribal government just prior to a transmission back to those that decided to open the wallets of Washington's taxpayers to create a procession that reminds one of a merry-go-round.
The 2016 election fund raising efforts are underway for candidates, political parties and political action committees. Accordingly, AUTO requests that the Public Disclosure Commission grant the petition and move forward to adopt a rule (WAC) in an expedited fashion. The entire petition is available for viewing here