On Tuesday, King County Superior Court Judge James Doerty granted the Elevated Transportation Company (ETC) a broad exemption from public-records law, ruling that the monorail agency did not have to immediately turn over many of the 1,200 documents sought by the anti-monorail group Citizens Against the Monorail (CAM). In its lawsuit to obtain the documents, CAM had argued that the documents were not exempt from state open-records law under the attorney-client privilege, as the ETC claimed, because they did not involve direct communications between ETC officials and their attorneys. Among the e-mails that Doerty declined to release were exchanges between ETC staffers that referred to legal advice provided by their attorneys; communications with the ETC's financial consultant, Daniel Malarkey; and documents related to the proposed motor-vehicle excise tax (MVET), which would fund the monorail, because they pertained to "anticipated" litigation by CAM. "There certainly is no question at all that the prospect of litigation is real, if not imminent," Doerty said, adding that he could see "no smoking guns" in the pile of unreleased documents.
Doerty also declined to require ETC staffers and board members, including technical program manager Joel Horn, to turn over their private computers; his Oct. 21 order that they do so is pending at the state Court of Appeals. ETC attorneys claimed Horn did not intentionally withhold e-mails from CAM by channeling his ETC e-mails to his private computer, as CAM claimed. But in two e-mails, Horn suggested he did exactly that. In September, Horn e-mailed ETC administrative assistant Michael Taylor: "Nothing on my ETC computer. I read and respond on my Blackberry [wireless device] and then delete at the end of every day." In another, dated July 30, Horn responded to then-ETC outreach coordinator Ed Stone: "No phone right now, can we have an e-mail exchange which you erase as we have it?" Henry Aronson, the former Port of Seattle commissioner who is managing CAM, says the e-mails point to "the most flagrant disregard of a public obligation"—that of retaining public records—"that I have ever seen." As Seattle Weekly went to press, the appeals court had not ruled on the ETC's appeal.
What documents were disclosed? Doerty was expected to entertain more arguments on Wednesday, but as of Tuesday afternoon, the ETC had released a handful that confirm CAM's assertion that the ETC has consistently held that the motor-vehicle excise tax would apply to new cars, contrary to recent public comments by the ETC. In one, Horn cites state House Speaker Frank Chopp as recalling "that their legislative intent was to have the monorail MVET on all motor vehicles including new vehicles."
That's only the latest sign of an inconsistency between the ETC's formal position on the tax and its attorneys' opinions. Elevated Transportation Company board chairman Tom Weeks says the tax does not apply to new cars and claims the Washington Auto Dealers Association successfully lobbied the Legislature to exempt new cars earlier this year. But in an Oct. 18 memo to ETC executive director Harold Robertson, an attorney from Preston Gates & Ellis stated that the tax would apply "equally to new motor vehicles and used motor vehicles" under the monorail authority's enabling legislation.