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TMCNet:  Judge: Yakima County clerk's texts 'highly offensive'

[February 21, 2013]

Judge: Yakima County clerk's texts 'highly offensive'

Feb 21, 2013 (Yakima Herald-Republic - McClatchy-Tribune Information Services via COMTEX) -- ELLENSBURG, Wash. -- A Kittitas County Superior Court judge has blocked release of a series of text messages that are part of a sexual harassment complaint an employee filed last year against Yakima County Clerk Kim Eaton.

Judge Frances Chmelewski ruled Tuesday she would not authorize the release of 95 text messages between Eaton and the male office employee, described as a longtime friend and business associate of Eaton's, saying a reasonable person would find their contents "highly offensive." Further, she found the contents aren't a matter of legitimate public concern.

Chmelewski ruled that while the messages are public records, their release would violate Eaton's right to privacy. Under the state's Public Record Act, the combination of "highly offensive" and "not of legitimate concern to the public" allows the information to remain sealed.

She is expected to rule today on release of other documents from a county investigation into the sexual harassment complaint.

The Yakima Herald-Republic had sought release of all documents regarding the harassment complaint in a public records request to Yakima County after receiving an anonymous tip in January.

The county had planned to release the contents of its file on the complaint until Eaton obtained a temporary restraining order in Kittitas County Superior Court to block release. Her attorney filed the case in an adjacent county because Yakima County is a defendant. Yakima County took no stand in court regarding whether the records should be released.

In court documents, Eaton described her relationship with the employee as one in which they maintained periodic personal and social communications and attended some of the same social functions and participated in some of the same social activities. She also said she has bought life insurance from him.

Herald-Republic editor Bob Crider said the newspaper sought the records to determine how well Eaton, who has been county clerk since 1992, is performing her job.

The newspaper wants to know specifically what she did to prompt to sexual harassment complaint by someone she supervises, he said.

"Obtaining the records would be a means of letting the public know about her fitness for office," he said. "Any documents or communications the county generated are of public interest because they may reflect on how well she performs her job. Without access to those records, we can't make that judgment." It wasn't until after the newspaper decided to pursue the records in court that it learned how many "highly embarrassing" text messages were sent, said Crider, who expressed disappointment over Chmelewski's refusal to order release of any of the text messages.

"The fact that (the judge) emphasized that 'without a doubt' they are highly offensive to a reasonable person leads people to speculate they are really bad," he said.

Eaton, currently on medical leave and contacted on her cellphone, said Wednesday she has no comment concerning the case since not all rulings have been made.

"It is in my attorney's hands. I haven't seen any orders. The last information I had the judge had not ruled on everything," she said.

Her attorney, Tyler Hinckley, said Wednesday there has been no finding that Eaton has done anything wrong.

Eaton, a Republican, was appointed county clerk in 1992 and elected to the position in 1994. She has won re-election to new four-year terms since then. The employee who filed the complaint has worked in her office since about 2005. Both before and after he was hired, he was a friend as well as her insurance agent, according to documents filed by Eaton's attorney.

Yakima County does not have a policy that prohibits department heads or elected officials from hiring friends or business associates, said Linda Dixon, Yakima County's human resources director.

"We have a general equal employment opportunity policy under which people should be hired on the merits of their knowledge, skills and ability. There is nothing that says you can't hire someone you socialize with unless it creates a conflict of interest," Dixon said in response to newspaper inquiries.

Her department reviews all hiring to ensure the applicants have the proper qualifications.

Since no policy exists, Dixon said the county has no idea how many friends or business associates of current county elected officials and department heads are employed by the county.

Since the newspaper's request for details of the case have been blocked, what is known emerges from court records. Eaton said in an affidavit that after his hiring, the unidentified employee never indicated he wanted no further personal communication from her.

"Because we had known each other for so long and had maintained friendly, personal communication throughout our friendship, I did not think that I had to be business-like when we were communicating about nonwork-related matters or outside of work," according to Eaton's declaration.

The document said the employee filed the sexual harassment complaint with the county's human resources department last September, requesting that Eaton limit communication to work-related matters. A county investigation was conducted. At some point, the issue was resolved to the satisfaction of the county, Eaton and the employee with an agreement by Eaton to end personal communications with him and to limit interactions to work-related matters. Since that time, the pair has worked together without incident, according to court documents filed on behalf of Eaton.

Court documents note that Eaton was not disciplined as a result of the complaint.

In most cases, however, county commissioners do not have authority under state law to discipline or otherwise sanction other county elected officials, according to the Washington State Association of Counties.

Eaton and Hinckley have argued the records sought by the newspaper are personal and private social matters in which the public has no interest. While admitting some of the communications occurred during work hours, they contend the exchanges were not work-related and their disclosure would embarrass and humiliate Eaton and "cause irreparable damage to her reputation," the motion said.

The Herald-Republic, through its attorney, Sarah Duran of Davis Wright Tremaine in Seattle, argued the investigative reports surrounding the complaint clearly are public records as defined by the state Public Records Act and should be released.

"The records are also a matter of obvious public concern; they address her fitness for public office, how she manages the clerk's office staff, and the adequacy of the county's investigation into the employee's allegations," Duran wrote in the Herald-Republic's brief opposing the preliminary injunction.

___ (c)2013 Yakima Herald-Republic (Yakima, Wash.) Visit Yakima Herald-Republic (Yakima, Wash.) at Distributed by MCT Information Services

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