Emails obtained by the C Is for Crank reveal the extraordinary measures city council members and staff took to promote legislation that expanded the Pike Place Market Historical District to include the Showbox on First Avenue in downtown Seattle, scuttling a planned apartment building on the site and prompting a lawsuit claiming that the council violated numerous state and city laws when they voted to effectively downzone the Showbox property from 44 stories to two. The emails also reveal that the city attorney’s office advised the council against pursuing landmark status for the Showbox based on the “popularity” of the venue, and warned that making such a designation based on popular sentiment in favor of the Showbox, a tenant, could raise legal concerns about whether the decision was “arbitrary and capricious.”
Among other machinations, the emails reveal that the city council’s public information officer drafted talking points for Death Cab for Cutie singer Ben Gibbard, who testified in favor of the legislation in early August, based on comments he made to an NPR reporter about the Showbox the previous week. Gibbard was listed as one of the “advocates” for the legislation in an email from the spokeswoman, Dana Robinson Slote, suggesting actions council members could take to promote the legislation; the advocates were listed in contrast to the “‘pain point’ players” in the debate, which included Onni, the developer that planned to purchase the land and build a 440-unit apartment building; Seattle Department of Construction and Inspections director Nathan Torgelson; and Mayor Jenny Durkan.
In the email, Robinson Slote writes,
Ben— Thanks for your time by phone yesterday. As promised, below you’ll find suggested talking points for Monday’s Full Council meeting. In short, I summarized many of the themes from an interview you gave in June this year, which seems to fit well with the Resolution and Ordinance CM Sawant will introduce to #SaveTheShowbox
Also as discussed:
• I’ll plan to meet you on the ﬁrst ﬂoor of the City Hall lobby approx. 1230p (Lyft can bring you to the 5th Ave entrance), and feel free to call if I can help guide you here.
• We’ll meet ﬁrst with Sawant for fewer than 15:00; and,
• Then I’ll take you to O’Brien (Ballard, Fremont) and Herbold (West Seattle), followed by Citywide elected Gonzalez & Mosqueda (and the remaining Councilmembers Johnson, Juarez, Bagshaw and Harrell) as time allows. Public comment begins at 2:00 p.m., so we can decide in advance if you’d still like to speak (and sign you in) or watch from the Green Room. Thank you once again for sharing your time and talent on this important occasion and for this critical cause.
Slote then lays out a full page of potential talking points, many of which focus on Gibbard’s experience growing into middle age in Seattle after moving here and falling in love with the city in the 1990s.
Kshama Sawant and her staff used private gmail accounts, rather than their official city of Seattle email addresses, to discuss the Showbox legislation and the lobbying campaign to promote it, which was run out of Sawant’s office.
Robinson Slote says she did not give Gibbard special treatment during the Showbox debate, and points out that the “talking points” she wrote for Gibbard were based on his own previous comments. Gibbard ended up writing his own testimony, which differed significantly from the draft Robinson Slote provided. However, the council’s solicitous treatment of Gibbard—which also included shepherding him from council member to council member and offering to host him in the council’s “green room,” away from the general public, during the council meeting—is not the standard treatment accorded to most members of the public, who must line up to speak, write their own testimony, and sit or stand in council chambers along with the rest of the general public.
Also unusual is the fact that legislation sponsor Kshama Sawant and her staff used private Gmail accounts, rather than their official city of Seattle email addresses, to discuss the Showbox legislation and the lobbying campaign to promote it, which was largely run out of Sawant’s office using city resources. It is standard practice for elected officials and public staffers to use their city email addresses to do public business, both because this practice just makes sense (all the other council members and staffers who are cc’d on the email use their public @seattle.gov addresses for all communications), and because private emails can more easily be withheld from public disclosure. If a journalist or member of the public requests email communications from an elected official or government staffer, it’s up to that staffer to volunteer their private emails for disclosure; the city’s public disclosure officers have no authority to go searching through people’s private email accounts. Additionally, public emails are archived by the city; private emails are not. Sawant and her staffers’ email addresses all use the naming convention Firstnameatcouncil@gmail.com.
Seattle Ethics and Elections Commission director Wayne Barnett says the city’s ethics code is silent on the issue of whether city officials and employees are allowed to do city business using personal email addresses. The city IT department’s policy on use of city resources, however, does prohibit “The use of personally owned technology for conducting City business, where official City records are created but not maintained by the City.”
In another email, Sawant’s staff discusses the wording of a poster, ultimately produced by Sawant’s council office, urging the council to vote to “save the Showbox” by including it in the historic district. An early version of the poster included the suggestion to “Call in sick – go protest!”
The fact that Sawant and her staff, as well as Robinson Slote, were discussing how to influence the legislation could—if the inclusion of the Showbox in the historic district is deemed to be a spot downzone of the property—give the owners of the property important evidence in their case that the council and staffers engaged in illegal “ex parte” discussions and failed to remain impartial on a zoning decision.
In another exchange that could help the Showbox’s owners make the case that the council intervened improperly on a zoning decision, the city’s own attorney cautions against seeking landmark status for the Showbox based on the “popularity” of the venue. (The inclusion of the Showbox in the historic district is different from landmark status, but the emails demonstrate that the city’s attorneys cautioned against such a political approach to historic designation.) In an email dated July 31, assistant city attorney Bob Tobin told city council member Lisa Herbold that it would be “premature” for the city council to “take the position that the [Showbox] qualifies as a landmark, without first allowing the (expert) Board’s process to play out, and without applying the standards in the code, seems premature at best. From a legal perspective it is preferable for the Council to consider the designation decision in due course, pursuant to City ordinances. And certainly if a resolution is being considered, it shouldn’t suggest (as CM Sawant’s letter apparently did) that designation should be based upon popularity rather than the legal standards in the code, or that the City should apply the code to exert ‘leverage’ over the applicant. Those types of references invite legal challenges based upon the ‘arbitrary and capricious’ nature of the Council’s ultimate decision.” The Showbox owners’ lawsuit, of course, claims precisely that the council’s decision to include the property in the Pike Place Market Historical District was “out of step with the founding of the Pike Place Market redevelopment and is the definition of arbitrary and capricious.”
The city’s own attorneys advised the council against making the argument that the Showbox should be granted formal landmark status because of its “popularity” with the public: “And certainly if a resolution is being considered, it shouldn’t suggest (as CM Sawant’s letter apparently did) that designation should be based upon popularity rather than the legal standards in the code, or that the City should apply the code to exert ‘leverage’ over the applicant. Those types of references invite legal challenges based upon the ‘arbitrary and capricious’ nature of the Council’s ultimate decision.”
One day after sending the email to council member about landmark status, Tobin responded to an email from Sawant staffer Ted Virdone, who had posed several questions about what would happen if the city included the Showbox in the Pike Place Market Historical District, rather than seeking to make it a landmark on its own. Virdone’s questions are in italics.
Hi Ted. Here is a quick response to your questions below, in red.
- Is it possible to extend the boundary of the historical district to cover a property if the property owner objects? I believe the answer is yes, as owners typically can’t veto regulatory measures.
- If the Historical District is extended to cover this property, could it effect this development, or would the develop be vested in some way that would trump the procedures of the historical district? I believe that vesting of such a project would likely occur at the time that the Design Review process begins (SMC 23.76.026), and I doubt that process has begun. If the district were enlarged before the projects vests, then the applicant would be subject to historic district regulations, but that doesn’t necessarily mean that the Showbox would be preserved.
- Are there any other considerations we should be aware of? There likely are, but I would need more focus on your questions and goals. Bob
Five days later, Virdone’s boss, Sawant, introduced legislation to extend the Pike Place Market Historical District to include the Showbox and about a dozen other properties on the east side of First Avenue. After property owners ultimately objected, that legislation was scaled back to encompass (and effectively downzone) just the Showbox property. Less than a month after that, the owners of the Showbox sued the city, seeking $40 million in compensation for legislation that, they say, drastically devalued their property.