Bruce Harrell, Council President Seattle City Councilmember, District 2 October 27,2017 Via E-Mail and Hand-Delivery Mr. Dit Ilitain Schwerin Campbell Barnard Iglitzin & Lavit, LLP 18 West Mercer Street Suite 400 Seattle, Washington 98199 Re: Miller et al. ». Sawant, King County Superior Court, Civil No, 17-2-21842-1 KNT: Scope and Course Decision Dear Me. Ilan: ‘This letter supports my SMC 4.64.020 seope and course decision with respect to Councilmember Kshama Savvant’s tender tothe City of Seattle of her defense in the above- captioned Lawsuit ‘Scope Decision SMC 4.64.010 provides that, if the Lawsuit arises “irom any conduct, acts or omissions . inthe scope and course" of Councilmember Sawant's City employment, “the City Attomey shal," at Councitmember Sawant's request, “investigate and defend” her inthe Lawsuit “The determination whether the officer or employee was acting within the seope and course of hfe] employment by the City shall be made by bfer] department head... SMC 4.64.020. As Council President, head the legislative department. Thus, I must decide whether Councilmember Sawant’ conduct tissue inthe Lawsuit was within the scope and course of her ‘employment. Pursuant to SMC 4.64010, SMC 4.64.015 (A), SMC 4.64.020, and Seatle City Charter ‘Article IL, Seetion 3, find that Councilmember Sawant was acting inthe scope and course of her employment when she made the speech a issue in the Lawsuit. As part of my determination, [also find tht te limitation set forth in SMC 4.64,015 (A) does not apply inthe present facts and circumstances. "Se Seatle City Charter, Antic I, Section 3 2 See also, RCW 496.041(1) and RCW 4.96 0410). 00 aur en, oor] PO box 035 Sal | Wanton 981244095 Phone (206) Sesebe Fx 200 eu sss? 732 ‘male NaetestMe. DeitiIelitain October 27, 2017 Page 2 T,Process took my responsiblity to make tis Scope Decision seriously. My goal was to make sure this decision has nothing to do with polities but rather a review of the pertinent fact and application ofthe lw. T suspeet my decision may be unpopular inthe views of many but I believe the decision that Ihave reached andthe process that I used to make tis decision was logical: peeformed in good faith: has a well-considred factual basis andi consistent wis applicable law. Ihave examined the facts and ezcumstanes of the speech at issue in the avout, and have been guided by relevant Iw. My Scope Decision is based on the following: > My review of the facts and theories alleged in the Complaint; > My review of all materials that Treceived from both you and from Mr. Rosenberg in response to my invitation to submit anything that either of you believe is pertinent to iy Scope Decision; > My review ofa video recording of the speech at issue in the Lawsuit, My review of news articles which reported on Councilmember Sawant’s speech; > My review of Councilmember Sawant’ legislative activities, policy pronouncements, and issue advoeacy relating to her work as a Councilmember and in particular, after her statements were made; > Conversations with Councilmember Savant about her speech and its factual context; and > My review of pertinent legal authorities. In order to ensure that my process was sound and that was flly apprised, I invited both you and Mr. Rosenberg, Plaintiffs” counsel, to submit any materials that either of you believed ‘would be pertinent tomy decision. The responses I received are among the materials that I reviewed and have listed above. Mr, Rosenberg’s final correspondence to me stated that “we trust the City has the information it neds to make a sound decision.” IML, Reasoning, A. Councilmember Sawant’s February 25,2016 Speech All ofthe material I teveived - both from you and from Plaintiffs in the Lawsuit— suggests that the Lawsuit basically centers around one incident: a speech that Councilmember 00 Fourth ven, oor? | PO ox34025 Sate | Washinton 981244025 Phone (306) sabe Fax 300) eue ase? YS malice haetssteMe. Dit Ilitain October 27, 2017 Page 5 Sawant gave on February 25, 2016, five days after the Che Taylor shooting.* [understand that the following occurred regarding that speech:* (Councilmember Sawant was working inher office at City Hall when she and her staff ‘became aware of a commotion outside. crowd of demonstrators had gathered in between City Halland Seattle Police Department Headquarters. The crowd had rallied to protest Che Taylor’s kiln. Councilmember Sawant lft her office and went dawn tothe street to engage with the crowed. According to Couneilmember Sawant, she did so because she felt it was important that she make time to show the community members gathered outside that atleast one City official Ineard their concerns and would pursue accountability on behalf ofthe community ‘Councilmember Sawant can be seen in the video holding a “Black Lives Matter” sign. She was ‘handed a bullhorn and then made a speech, Inher speech, Councilmember Sawant identified herself as an elected offical, a minority, and a person in solidarity with the movement for racial, economic, and socal justice. ‘Councilmember Sawant discussed “systematic racial injustice” and profiling by the police, her ‘commitment as an elected offical to holding the police and politcal leadership accountable, described the Che Taylor shooting a a “brutal murder” —a “blatant murder atthe hands ofthe police” — and expressed how this shooting showed how urgently she and others need to keep building their movement “for basic human rights for black people and brown people.” "Notably, the video recording of her speech begins with a member ofthe public stating “at least somebody’ came down to talk to us”; and another member of the public remarked during her speech - “that’s right that's why she got elected.” ‘The speech lasted a few minutes B.A Seattle City Councilmember's Duties ‘Next, evaluated the scope and breadth of a City Councilmember’s duties. I considered: > A City Counciimember’s legislative duties asset forth in the City Charter; > Pais" Complaint also alleges that Councilmember Sawant “reiterated” her statements “publily "xoughout tho year” and has continued to rete to the shooting as “murder” and pully assert that the “offices avoided “aceountabily.” Compl, #26, 28. However, Plants di nat provide any information regarding when Councilmember Sawant allegedly made these statements r the context ia ihe made he, Instead, Me: Rosenberg ossdon Coaninenber Sant Febuy 23, 2016 speech in is submissions to me. “This is ony a summary of Counitmember Sawant's speech, To better understand the bess for my Scope Decision, | encourage a review of her statements fn thei entirety as shown on Video ands confemporaneously reported bythe Sanger and The Seattle Times. ‘o2Fouth Avenue for | Robor 30%, eat | Wasnt 921-025 one ine) ceo Fx) eneese? TY Coa ace eeveeMe. Dm Ilitzin October 27, 2017 Page 4 > ACity Councilmember’s ceremonial, informational, and related functions referenced inthe Code of Ethies; > The policy-making role of City Councilmember as discussed in the General Rules and Procedures of the Seattle City Council and in resources published by the Association of Washington Cities; > Relevant law, including: ‘Washington law regarding whether an employee aets within the seope and course of his or her employment forthe purpose of holding the employer liable forthe acts of its employee: ‘+ Federal decisions considering whether allegedly defamatory speeches and statements made by Members of Congress were within the scope of their Councilmember Sawant has a history of taking policy positions regarding police reform and accountability and regarding systemic racism and related issues regarding the use of force; > Councilmember Sawant has used official City channels to make similar statements and to advocate for police accountability, reform, and related issues important to the Black Lives Matter movement; > Councilmember Sawant was in her office working and descended to join a crowd of demonstrators who had gathered to have their voices heard regarding the Che Taylor shooting; > A:member ofthe erowd expressed appreciation that “at least somebody came down to talk tous"; "a, "it " Operation Rescue Natl, 975 F Supp. at 108, 00 Fourth venue, aor2 | PO Bon 3025 Sale | askngton 98128-4025 Phone (206 Bube ax (6) 48587 FHYTAE ‘i bce treat go‘Mr. Dmitri Ipitzin October 27, 2017 Page 6 > Councilmember Sawant described the shooting as a “murdes” within a longer speech that she was giving regarding the need for police reform and accountability and in The nature of the interaction between Councilmember Sawant and the demonstrators suggests that she was responding to their coneems and viewpoints; > Councilmember Sawant wrote a fellow Councilmember and the Seattle Police Chief the day after her speech about eoncems she had heard from the NAACP and ‘community members outside of City Hall at that protest rally and to schedule related Council briefings; > Although Councilmember Sawant’s statements were not directly ted to any specific ‘pending legislation, she was speaking about issues important to her constituents, and ‘on which she has been engaged in legislative and poliey advocacy; > Councilmember Sawant made the speech a few days after the Che Taylor shooting, not during a campaign rally for re-election, have concluded, pursuant to SMC 4.64020, that under these circumstances, Councilmember Sawant's speech was within the scope and course of her employment as a Seattle City Councilmember, ‘SMC 4.24.015 requires that [also determine, as pat of my SMC 4.64.020 scope and ‘course determination, whether the Lawsuit arises irom “dishones, fraudulent, criminal or malicious ats or omissions." Plaintiffs’ Complaint does not allege any such actions, but Plaintifs” counsel stated ina submission to me that they “intend to prove” that Councilmember Sawant acted with “actual malice.” “There is not suficient evidence to support such a determination at this time. ‘Councilmember Sawant did not identify the police officers by name, and the context of her statements do not indicate that she was acting dishonesty, fraudulently, criminally, or ‘maliciously. Instead, she gave the speech in response to members ofthe public rallying to ‘express their concems about police use offre and related systemic racism — in thie view, exemplified inthe shooting of Che Taylor. Her statements are consistent with poliey positions ‘that she has taken on behalf of her constituents Plaintiff" counsel may intend to prove malice but they have not done so yet, malice is not inthe complaint, do not see such evidence now, and I will ot prejudge the mets ofthe defamation claim. My determination i that there isnot at present sufficient evidence to support a determination that Councilmember Sawant acted maliciously." TF determine tha this limitation applies, then the City “shall have no obligation to defend or indemnify” Councilmember Sawant, SMC 4.64.015 (A), "Nor is there evidence, nor even any allegation, tat he speech was dishonest, fraudulent, or ermal Ansaseeernty ems ‘10 Fourth venue, Flor? | POD See | Wagon 98124-2025 Pane 205] 6888504 Fos] e86587 THVT ‘mall burahoreliseatin go.Me, Dit livin October 27, 2017 Page 7 In losing, I note an important point. My determination that Councilmember Sawant’s speech was within the scope and course of her employment does not mean that I agree with her statements, nor does this disclaimer mean that I disagree. The content of her speech or the effect ‘of her speech willbe determined in court and the plaintiffs are still entitled to argue their casein this regard, ‘Thank you for your patience as I took the time appropriate to gather and assess the information that you and others have provided, and to make my decision. A member of our Law Department will contact you regarding your tender of Councilmember Sawant's defense. Sincerely, Bhdf "oun President Seattle City Council ee: Councilmember Kshama Sawant City Attomey Pete Holmes ‘Adam Rosenberg Aneaseppornty eset 10rourh Avenue, Foor? | 90 boat Sete | Watingon 98126-4025 Phone [2] 4 S004 rays] ea48587 THVT ‘mail uestoreliseatingoy