Langley settles lawsuit; mayor takes issue with claim

The City of Langley last week paid $15,000 to settle a lawsuit by Langley resident John Norby over alleged breaches of the state’s Public Records Act.

Issues between Norby and the city, however, don’t appear to be over as city staff are taking issue with a new claim being made by the Langley man. Mayor Tim Callison threatened to sue the South Whidbey Record and Norby if Norby’s allegation that Callison withheld information about a public records request is published.

IN DECEMBER 2016, Norby filed a lawsuit centering on former Mayor Fred McCarthy and pocket notebooks that he apparently shredded following a records request. Norby claimed the city acted illegally when it denied him access to what he considered to be public documents.

McCarthy declined to comment.

In response to the shredding, Norby, represented by Seattle-based Kahrs Law Firm, asked for an award of attorney’s fees and costs pursuant to judicial review of agency actions.

“We want an open and transparent government,” Norby said. “What I find appalling is the cost of lawyers. This settlement came from the pockets of the residents of Langley, plus thousands of dollars in attorney fees.”

THE SETTLEMENT agreement stipulates that it is a compromise of a disputed claim. The payment is “not to be construed as an admission of liability” on the city’s part, according to the two-page document.

Callison said he considers the settlement to be “purely” a financial decision and avoids a potentially “expensive” trial. The settlement was determined through discussion with the city’s insurance carrier, the Association of Washington Cities, as well as city staff, Callison said. The city received the Langley City Council’s nod of approval during an executive session on Jan. 2.

“The city does not recognize any fault or any guilt in the final decision,” Callison said.

THE LAWSUIT named McCarthy, Callison and City Clerk/Treasurer Debbie Mahler.

According to court documents, Norby asked for McCarthy’s small pocket notebooks, journals, diaries, notebooks and daily calendars on Dec. 10, 2015. After reviewing the request, Lighthouse Law Group, the city’s attorney at the time, determined that McCarthy’s notes were not considered public records, nor subject to disclosure.

McCarthy informed the city’s lawyers on Dec. 17, 2015 that he shredded some of the documents at a “commercial secure document destruction service.”

McCarthy said in a previous interview that he was reluctant to hand them over because they included personal information such as banking account numbers and passwords.

MAHLER INFORMED Norby on July 7, 2016 of an email between McCarthy and the city attorney that detailed the shredding of the notebooks, which was discovered while fulfilling an unrelated public records request.

The shredding was previously unknown to city staff, Mahler said.

The following day, Norby made a public records request asking for Callison’s knowledge of the shredding and correspondence between Callison and McCarthy.

Lawsuit documents state Norby never received records in response to his request.

Mahler wrote in an email Thursday that the city could not provide the documents because none existed.

NORBY NOTED that state law required the city to redact the records rather than withhold them and prohibited it from destroying them. He alleged the city did not supply him with the fullest assistance, failed to respond to his Public Record Act requests, silently withheld records and failed to properly redact records in his request for McCarthy’s documents.

“I was pissed because he (McCarthy) broke the law,” Norby said.

McCarthy and Norby have a strained relationship. The two got into a public squabble over decaying tires on city property in 2015. Norby complained the city had not taken his concerns from a year beforehand seriously. The city later removed them, though Norby had already removed some himself.

A new allegation leveled this past week by Norby revolve around Callison and Mahler. Norby is disputing the timeline of when Mahler and Callison knew about the shredding. He alleged both knew the documents were destroyed before Mahler said she was aware of the email in July 2016; he said he’s continuing to investigate the matter.

Mahler and Callison strongly denied Norby’s assertions.

“Of course it’s not true,” Callison said.

FOLLOWING UP a phone interview with The Record on Monday, Callison stated in an email that he had no knowledge of the shredded notebooks until July, and concluded his message by asking the newspaper check with its attorney before running a story containing Norby’s allegation, asserting it “might be grounds for a libel suit against The Record and Mr. Norby.”

Callison also said on Monday afternoon that the newspaper should “be careful” about its story.

“I hope you don’t print something based on hearsay that’s not true,” Callison said. “I did not have anything to do with it. It happened all before I began my service.”

FRED OBEE, executive director of the Washington Newspapers Association, said it would be “very” difficult for “any” mayor to sue for libel and win because an elected official would have to prove the newspaper acted with malice and reckless disregard for the truth.

“That’s a high bar, and it’s high for good reason,” Obee said. “To preserve an open and robust discussion of public affairs, people need to be able to question government officials without fear of reprisals.

“Historically, many public officials have found it is better politically to calmly confront false claims with facts, rather than threat of a lawsuit,” Obee said.

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