Judge orders Puyallup to pay $131,064 in records case, but an appeal could mean more bills

If former Puyallup City Councilman Steve Vermillion wants to keep fighting a losing battle in a long-running public-records lawsuit, that’s his right.

Whether the city will continue to pay his legal bills is another matter.

The vexing question — one among many — rumbled through the city after a recent court order appeared to close the book on a lawsuit Olympia activist Arthur West filed against Vermillion and the city in 2014.

As it turned out, the apparent ending came with a twist.

On June 15, Pierce County Superior Court Judge Stan Rumbaugh ordered the city to pay $131,064 in penalties for nondisclosure of emails that were related to public business and stored on a private website maintained by Vermillion. The underlying records included communications among Vermillion and constituents about city business, as well as his own lobbying on behalf of a nonprofit organization.

“I simply do not believe that the position of Mr. Vermillion, and thereby the City, was reasonable,” said Rumbaugh, who explained his ruling in open court last month. “The records I reviewed clearly reveal activity that was related to issues discussed in public meetings of the City Council.

"The idea that somehow that should be withheld from disclosure under the Public Records Act seems to me to be an unreasonable position.”

The judge’s ruling followed more than four years of litigation and appeals. The city and Vermillion fell short at every turn, including an ill-fated appeal to the U.S. Supreme Court, rejected in fall 2017.

In that span, the city spent $154,521 on outside attorneys, including $124,974 to Ramsey Ramerman, who is representing Vermillion in the case. Combined with the penalties ordered by Rumbaugh, the total cost of the case exceeds $285,000.

On Monday, 10 days after Rumbaugh’s order, Ramerman filed an appeal, prompting West to follow up with a motion for reconsideration that threatened to keep the matter alive and add more costs.

City Attorney Joe Beck said he knew beforehand that Ramerman would file the appeal, though he had no control over the decision.

“I did not have a say in its filing,” he said. “We’re still trying to figure this out ourselves.”

The developments led to a flurry of conversations in Puyallup, as city leaders weighed the prospect of continuing a politically fraught argument they would prefer to finish.

“I think we want to get this thing over with,” Mayor John Palmer said Thursday.

The appeal also drew fire from City Councilman Jim Kastama, who has openly criticized the city’s overall approach to legal strategy. In January, he sponsored a resolution that required city administrators to return to the City Council for approval before appealing decisions related to the Vermillion case. It passed unanimously.

On Wednesday, Kastama called for a special meeting of the council to address the appeal issue.

“Thus far, no court has sided with the City of Puyallup in its efforts to seek constitutional protections for the retention of emails sent by former Councilmember Steve Vermillion,” Kastama wrote in an email to Palmer and Deputy Mayor Tom Swanson. “Put simply, it is time to end this chapter in Puyallup’s history. I believe a public vote is most efficacious manner to address this.”

City leaders opted out of a special meeting, according to City Manager Kevin Yamamoto. Instead, the council is expected to address the Vermillion case at its next regular meeting on July 10.

The city also issued a broad statement reiterating arguments made throughout the course of the lawsuit that have failed to gain traction with judges.

"The case involves interplay between the Washington State Public Records Act and the Constitution of the United States," the statement reads, in part. "Under the First Amendment of the United States Constitution, the people and their elected officials have the constitutional right to communicate with each other. This communication is fundamental to democracy.

"Recently, the Pierce County Superior Court ruled that the communications between constituents and Mr. Vermillion are public records, and thus, ordered production of the communications and imposed penalties against Mr. Vermillion and the City of Puyallup. Although the superior court ruling is not supported by Federal law and Washington State law, the City of Puyallup is attempting to settle this matter rather than pursue additional litigation."

Yamamoto said Thursday the city wants the case to end with a settlement that satisfies all parties, if possible.

“We want a global resolution,” he said. “That’s the objective.”

A global settlement would require Vermillion to withdraw his appeal, something the city can’t control. But a separate wrinkle in the case could give the city leverage.

Throughout the life of the lawsuit, the city has paid Ramerman’s legal fees, in keeping with a provision of Puyallup’s municipal code.

“To this point, all the costs for defending Mr. Vermillion, per our code, have been paid by the city,” said Beck, the city attorney. “I would expect that we would continue to pay that, but I don’t have ultimate control over that because the council signs the checks. There’s obviously arguments for and against the city continuing to do that.”

Yamamoto, possibly understating the tone of internal debate, said the issue of Vermillion’s legal fees is likely to be a hot topic for City Council members.

“That will be an issue of significant debate if global resolution cannot be achieved,” he said.

Yamamoto also called the appeal from Vermillion a “placeholder” that could be withdrawn at any time if the parties agree on settlement terms, or in layperson’s terms, “How much?”

Hints of an attempted agreement appear in court records filed by West. They include a June 20 email from Beck to West, offering $75,000 as “a reasonable amount to resolve this matter and settle all related claims.”

In court filings, West described the offer as a 40 percent reduction in penalties, offered along with “the threat of appeal” as a negotiating ploy. He has not responded directly to the offer, apart from scoffing at it in court filings.

Rumbaugh’s ruling adds another complicating factor in the case.

He held that the city and Vermillion were both liable for the penalties, creating a theoretical personal debt for Vermillion. While the city could pay the former councilman’s costs through a standard procedure known as indemnification, Beck and Ramerman argued in court that the unusual liability order violated legal precedent — a topic that could become fodder in appeal arguments.

While no decisions have been made, Yamamoto, echoing the private and public statements of council members, said the city hopes to reach a decision within 30 days.