Rob McKenna OKs fake Attorney General letterhead for partisan mudslinging

[Ed. Note: 1/13/08: Last month, Washington State Representative Geoff Simpson introduced legislation that would prohibit the use of the "likenesses" of stationary of a public office for assisting campaigns. This is HB 2447: Clarifying agency facilities in the context of political campaigns.]

This is the image from a faux Attorney General letterhead used in a mass mailing by Washington's Attorney General Rob McKenna in 11/06 to support a Republican candidate for state Senate. During the same election, Mr. McKenna recorded a robo-call, identifying himself as Washington's Attorney General and advising listeners to vote for Luke Esser for state Representative.

Bright Mind broke the story on Washblog yesterday.  Washington State's Republican Party has sent out a letter on official-looking but fake Attorney General letterhead that slams a Democratic candidate here in the 47th Legislative District -- and extols the virtues of the Republican candidate.  McKenna misrepresents the Democrat's employment and accuses her of preying on the vulnerable. Relevant to note here is the fact that the candidate in question, Claudia Kauffman, has spent her career helping and protecting the vulnerable.

Here's a jpg of McKenna's letter.  Interesting  that Mr. McKenna would choose to denounce campaign literature of a local Democrat -- literature that stays on the issues and is respectful and ethical -- while he has repeatedly ignored illegal and questionable Republican behavior. Last year, there were the fake sex offender notices coming from Republican campaigns. In 2005, there was the use of illegally modified voter challenge forms to purge legitimate voters from Democratic areas from the rolls right before an election. In 2004, there were the illegal ads run against Deborah Senn by the US Chamber of Commerce.  Here, David Goldstein quixotically calls on Mr. McKenna to tell his party to stop its dirty tricks.  Here, Steve Zemke on Majority Rules blog tells us that McKenna is conspicuously absent from the list of state Attorney Generals suing to protect Washington citizens from rising gas prices and global warming.  This past Saturday, Darryl Holman of Hominid Views revealed that Mr. McKenna has recorded robocalls containing misleading statements about Rodney Tom's legislative attendance record.

I spoke with Janelle Guthrie, Communications Director for the Attorney General's office today.  She emailed me a reassurance that everything was in fine legal order regarding the use of this fake letterhead to support a Republican.  You'll see her correspondence below.  

Mr. McKenna is gearing up for his next campaign.  He already has a campaign manager, Craig Wright, who managed his 2004 campaign.  And I hear he's been running a series of ads -- on the Attorney General dime of course -- that make him look mighty darn heroic and electable. McKenna needs to be held accountable for using the dignity of his office to stump for Republicans and attack the reputations of Democrats -- while consistently refusing to investigate and prosecute wrongdoing that could reflect poorly on Republicans.

Hi Noemie,

I've verified that Attorney General McKenna did, in fact, authorize that letter under his signature, however, the letterhead on the letter is not the official "Office of the Attorney General" letterhead and as the letter reads, it was "paid for by the Washington State Republican Party."

To follow is the state law regarding use of public resources:

RCW 42.52.180  Use of public resources for political campaigns

(1) No state officer or state employee may use or authorize the use of facilities of an agency, directly or indirectly, for the purpose of assisting a campaign for election of a person to an office or for the promotion of or opposition to a ballot proposition. Knowing acquiescence by a person with authority to direct, control, or influence the actions of the state officer or state employee using public resources in violation of this section constitutes a violation of this section. Facilities of an agency include, but are not limited to, use of stationery, postage, machines, and equipment, use of state employees of the agency during working hours, vehicles, office space, publications of the agency, and clientele lists of persons served by the agency.

(2) This section shall not apply to the following activities:

(a) Action taken at an open public meeting by members of an elected legislative body to express a collective decision, or to actually vote upon a motion, proposal, resolution, order, or ordinance, or to support or oppose a ballot proposition as long as (i) required notice of the meeting includes the title and number of the ballot proposition, and (ii) members of the legislative body or members of the public are afforded an approximately equal opportunity for the _expression of an opposing view;

(b) A statement by an elected official in support of or in opposition to any ballot proposition at an open press conference or in response to a specific inquiry. For the purposes of this subsection, it is not a violation of this section for an elected official to respond to an inquiry regarding a ballot proposition, to make incidental remarks concerning a ballot proposition in an official communication, or otherwise comment on a ballot proposition without an actual, measurable expenditure of public funds. The ethics boards shall adopt by rule a definition of measurable expenditure;

(c) Activities that are part of the normal and regular conduct of the office or agency; and

(d) De minimis use of public facilities by state-wide elected officials and legislators incidental to the preparation or delivery of permissible communications, including written and verbal communications initiated by them of their views on ballot propositions that foreseeably may affect a matter that falls within their constitutional or statutory responsibilities.

(3) As to state officers and employees, this section operates to the exclusion of RCW 42.17.130. [1995 c 397 § 30; 1994 c 154 § 118.]

According to a 2000 opinion by the state executive ethics board:

"RCW 42.52.180(1) does not prohibit state officers and employees from "assisting a campaign for election of a person to an office or for the promotion of or opposition to a ballot proposition". Rather, it prohibits them from using or authorizing the use of the facilities of an agency for that purpose.

The term "facilities of an agency" includes, but is not limited to:

[U]se of stationery, postage, machines, and equipment, use of state employees of the agency during working hours, vehicles, office space, publications of the agency, and clientele lists of persons served by the agency.

The issue is whether an officer's or employee's title is one of the "facilities of an agency".  In our opinion, an officer's or employee's title is not a facility of an agency. The definition of "facilities of an agency" includes tangible things such as equipment, supplies, the time of the officer or employee, and client lists maintained by the agency. Although the list in the definition of "facilities of an agency" is not exclusive, we concluded that is limited to the same kinds of tangible things that are included in the list.

A title is not a tangible facility of an agency. Rather it is the identity of an officer or employee at work, and the use of the title will not impose any costs on the state. Thus, we concluded that the use of an officer's or employee's title is not a facility of an agency."

I hope this alleviates your concerns about misuse of state resources. Thank you for contacting our office and have a great night!

Janelle Guthrie, APR
Communications Director
Office of State Attorney General Rob McKenna
1125 Washington Street SE
PO Box 40100
Olympia, WA 98504-0100
Phone: (360) 586-0725
Cell: (360) 584-3046
E-mail: janelleg@atg.wa.gov

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