Have Washington's State Laws Kept Up with Evolving Technology?

State Rep. Melanie Stambaugh, R-Puyallup, asserts that the Ethics Board is interpreting the state’s 1994 ethics law in a way that doesn’t account for how people use modern technology.

by Melissa Santos, The News Tribune (Tacoma, Wash.) / December 12, 2016
Rep. Melanie Stambaugh speaks in support of House Resolution 4613, recognizing Japanese-American internees and WWII veterans. Flickr/Washington State House of Representatives

(TNS) -- The last time a legislative ethics panel held a hearing in Washington state 22 years ago, it involved a public official allegedly using state offices and a state computer to aid his nonprofit.

This time, it’s about what a state lawmaker can and can’t post on Facebook.

State Rep. Melanie Stambaugh, R-Puyallup, will go before the Legislative Ethics Board on Tuesday to challenge the board’s initial finding that she violated ethics rules 44 times by posting state-funded photos and videos to her campaign Facebook page.

Stambaugh, who in 2014 became the youngest woman elected to the Legislature in nearly 80 years, says the videos and photos are public records available on the websites YouTube and Flickr, and that she shouldn’t be restricted from using them to communicate with her constituents.

She asserts the Ethics Board is interpreting the state’s 1994 ethics law in a way that doesn’t account for how people use modern technology and that it subverts the state’s Public Records Act in the process.

“I see this as a threat to our ability to converse about government,” said Stambaugh, 26, in an interview Thursday.

“This is about so much more than a Facebook post — this is truly about access to information in this technological age that we’re in.”

The Ethics Board says Stambaugh erred by embedding the state-produced videos on her campaign Facebook page in a way that allows them to be viewed there without leaving the site.

The videos in question are periodic updates about Stambaugh’s work in Olympia that legislative staff produced during the 2015 and 2016 sessions.

The board has previously said that lawmakers’ campaign websites can link to legislative materials and videos, but that those links must take visitors away from their campaign pages to “create an appropriate separation between the campaign and the legislative materials.”

The rules are intended to enforce the state’s ethics law that says state resources can’t be used for campaigning. The board said it was trying to strike a balance between maintaining access to public records and prohibiting the use of state resources in elections.

Stambaugh said she thinks it is important to have the embedded videos — as opposed to “unknown blue links that look like jargon” — on her Facebook page to encourage people to click on the content and get them engaged them in government.

Stambaugh has hired a lawyer who specializes in public records cases, Nick Power, to represent her before the Ethics Board this week.

Power is asking the board to dismiss the complaints against Stambaugh and to re-evaluate its rules governing the use of legislative videos and photos on Facebook.

He said the board’s rulings infringe on Stambaugh’s First Amendment rights, while being tone deaf to how people are accustomed to interacting with content on social media.

“It’s just on a collision course with the Constitution, it’s on a collision course with the Public Records Act, and it’s on a collision course with technology,” Power said about the Ethics Board’s interpretation of state law.

“It’s something that needs to be fixed.”

HISTORY OF THE LAW

Marty Brown, a former legislative director and budget director for Democratic Govs. Chris Gregoire and Gary Locke, said the advent of the internet and social media makes the issue more complicated than it was two decades ago when the state’s ethics laws were drafted.

“Nobody contemplated this kind of thing in 1994,” said Brown, who served as caucus staff director for Senate Democrats in the early 1990s and later as secretary of the senate. “There wasn’t social media, and I don’t think we had any (legislative) videos at all. ...

“It makes it lots more difficult, I think, to draw black and white lines.”

The 1994 ethics law was passed after an investigation by the state Public Disclosure Commission revealed that legislative caucus staff were actively working on campaigns on state time, contrary to state law.

The ban on using public resources for campaigns is designed to avoid giving incumbents significant advantages over those who challenge them, Brown said.

The investigation in 1992 revealed violations, such as legislative employees going out in the field to videotape opposing candidates, producing campaign literature on state time using state equipment and recruiting candidates to run for office.

Legislative staffers also were organizing campaign fundraisers, training candidates and drafting campaign plans on state time, the investigation found.

Allen Hayward, who spent 34 years as legal counsel for House Republican leaders, said what was happening in the early 1990s “was dramatically different” from the circumstances of Stambaugh’s case.

Back then, photos and campaign pamphlets were being produced at state expense solely for use in an election, he said.

By contrast, the videos and photos of Stambaugh are considered a legitimate use of public dollars to document her work in the Legislature.

It’s just how those videos and photos are used elsewhere that poses an issue for the Ethics Board.

Hayward said he doesn’t think posting the videos on a campaign Facebook page should constitute a violation because sharing the videos online doesn’t create any additional cost to the state, unlike mailing or printing paper fliers or pamphlets.

“The public expenditure already occurred — it already happened,” Hayward said. “It was deemed perfectly appropriate state work at the time.”

While Hayward said it is possible that allowing the use of legislative videos on campaign sites could prompt lawmakers to try to make more of them during legislative sessions — the period when their production is allowed — putting a gag order on the products after the fact isn’t the right solution.

HEARINGS ARE RARE

Unlike Stambaugh, most lawmakers don’t fight the Ethics Board’s decisions. Instead, they typically sign a document acknowledging they were in the wrong and agreeing to take down the content that the board said was in violation.

It’s rare for a complaint to progress to a public hearing like the one Stambaugh will have this week.

According to Ethics Board staff, the last time a similar public hearing was held was in 1994, when former Senate Secretary Gordon Golob was hauled before the Senate Board of Legislative Ethics, a predecessor to the current Ethics Board.

Today, the nine-member Ethics Board consists of four sitting legislators and five private citizens.

Sometimes, lawmakers stipulate to the board’s rulings so they can put the matter behind them and focus on their campaigns — not because they agree that the board’s rules make sense.

That was the situation this year with Republican state Reps. Teri Hickel and Linda Kochmar of Federal Way, who the board also found violated ethics rules by posting legislative videos on campaign websites.

A spokesman for Hickel, Keith Schipper, said that although the board’s rule “has absolutely no merit,” it wasn’t worth fighting over during a competitive campaign. In the end, Hickel narrowly lost her seat to Democrat Kristine Reeves.

Kochmar said she doesn’t understand the board’s rule either, but similarly chose not to challenge it so she could focus on her campaign. Kochmar lost her House seat to Democratic challenger Mike Pellicciotti in November.

“For me, it’s semantics,” Kochmar said. “You can’t post a video, but you can post a link that takes you right to the video. That doesn’t make sense.”

A PUBLIC RECORDS ISSUE?

Calls to the chairman of the Legislative Ethics Board, Kenny Pittman, weren’t returned this week.

State Rep. Drew Hansen, a Democratic lawmaker from Bainbridge Island who sits on the board, said Friday that he didn’t think he should discuss Stambaugh’s case with a reporter, given that the board was about to hold a hearing.

Another Democratic member of the Ethics Board, state Sen. Jamie Pedersen of Seattle, didn’t return a phone call.

Yet eight years ago, Pedersen indicated he disagreed with a series of board rulings finding lawmakers at fault for using legislative press releases on their campaign websites. His reasoning sounds much like what Stambaugh is now arguing: That the press releases produced by legislative staff are public documents and shouldn’t be subject to restrictions on how they are used.

Such documents “should be broadly available to the general public, even (or especially) in the context of campaigns,” Pedersen wrote in his dissent to a 2008 decision by the board.

“Here a legislator’s campaign, at its expense and no additional expense to the state, proposes to make public records more broadly available to the voters to help them make an informed decision at the next election,” wrote Pedersen, who is a lawyer. “In my view, that activity is not a violation.”

Toby Nixon, president of the Washington Coalition for Open Government, said he thinks it is time for the Ethics Board to “take a comprehensive look” at its rulings regarding lawmakers’ use of legislative products, such as press releases and videos.

A former state lawmaker, Nixon was dinged for posting legislative press releases on his campaign website in 2006 and disagreed with the board’s ruling at the time.

“Public information should be available,” Nixon said.

“Anyone should be able to link to it, and you shouldn’t be unable to link to it because you’re a legislator.”

©2016 The News Tribune (Tacoma, Wash.) Distributed by Tribune Content Agency, LLC.