Emerson sues Dean over flyer in Island County election

On the day before the election, Island County commissioner candidate Kelly Emerson and her husband filed a lawsuit against her political opponent, Commissioner John Dean, as well as the county planning director and another county employee.

The lawsuit, filed in Island County Superior Court, claims civil rights violations, defamation, and violations of the state’s Consumer Protection Act. The lawsuit names Dean, Planning Director Bob Pederson and building inspector Ron Slechta as defendants; plaintiffs Kenneth and Kelly Emerson ask for unspecified damages.

Dean said he couldn’t discuss the specifics of ongoing litigation, but he urged Kelly Emerson to drop the lawsuit if she wins the election — which seems likely.

“It’s going to cost the county a lot of money,” he said. “I’m not sure how she reconciles that with her promise to cut government spending.”

Likewise, Island County Prosecutor Greg Banks was shocked by the lawsuit and believes it may be a one-of-a-kind case of an employer — an incoming commissioner — suing her employees. He also said it could be very expensive for the county, which is in the midst of a budget crisis.

“It’s like governing by suicide bomb,” he said. “...The first move by a county commissioner is to widen the hole in the budget. Brilliant.”

Yet Emerson said she and her husband felt the lawsuit was the best way to change things in county government.

“We did it to shine a light on some of the actions that are being promoted,” she said. “I know our case is not unique when it comes to the violations of privacy and the deprivation of property rights in this county.”

Emerson admitted she was concerned about the potential costs to the county, which is why the lawsuit names individuals and not the county. Yet Banks explained that the lawsuit cites civil rights violations, which can only occur when there’s a government figure allegedly infringing upon an individual’s rights. That requires the county, and specifically the county’s risk pool, to handle the litigation; the county will have to pay a large deductible.

The complaint centers on a controversy over a sunroom the Emersons were building onto their Camano Island home without a permit, as well as a mailer that Dean sent to voters that was critical of Kelly Emerson for the alleged violation of county building codes.

The issue arose after a neighbor of the Emersons sent an email message to Dean complaining that the Emersons were adding onto their home without a permit. On Aug. 30, Dean forwarded the message to several people, including Pederson, with the simple message “FYI.” Several hours later, Pederson sent Slechta to the property and Slechta went into the backyard to slap a stop-work order on the project.

Then in October, Dean sent out a mailer to about 20,000 county residents that was critical of Emerson for building without a permit.

The lawsuit, written by Everett attorney Stephen Pidgeon, claims Dean defamed Kelly Emerson in the mailer. On one side of the mailer is an image of a shocked couple — which Dean said he purchased through a stock photography provider — reading a newspaper with the made-up headline “Emerson ignores County law” along with Emerson’s photo.

The lawsuit claims that the mailer was defamatory because the image made it appear “as though the article as depicted had actually run in a newspaper within Island County, when it never had.”

But in an interview last month, Dean said the phony headline was intentionally done in a way that it was obvious to a reader that it wasn’t a genuine newspaper, but it was just a way to grab people’s attention. He admitted that he was a little uncomfortable about the humorous aspect of the image, but felt he needed to pique voters’ interest.

The lawsuit also claims that the mailer, identified as a “flyer” in the court papers, constituted a violation of the state Consumer Protection Act.

“Defendants have engaged in fraud by publishing false and defamatory statements in flyers that are designed to mislead voters by means of intentional misrepresentations and fraudulent and defamatory inferences,” the lawsuit states.

Also, the lawsuit claims the defendants acted in concert to deprive the Emersons of their constitutional rights, including the right to due process. Specifically, the claims states that the stop-work order was issued without justification, contrary to county code and in an effort to harm Kelly Emerson’s bid for office.

The lawsuit includes a image from the county planning department’s website to show that the county acted contrary to policy by issuing the stop-work order before receiving a formal complaint. But county officials have said it’s a long-held policy to act immediately — and not necessarily wait for a formal complaint — in dealing with ongoing construction without a permit.

The lawsuit states that the Emersons’ privacy rights were violated because Dean was given access to the stop-work order, and used it on his mailer, before it was publicly available.

Finally, the Emersons claim that Slechta trespassed when he went onto their property to issue the stop-work order. The Emersons weren’t home, so he allegedly went into their yard. The lawsuit alleges that he needed permission or a search warrant to go onto the property.

While Banks didn’t want to discuss the trespassing issue in specifics, he did say that county employees have the right to enforce the county’s planning laws.

Emerson doesn’t think she will have a problem working with Pederson or other planning department staff members, in spite of the lawsuit.

“You have to separate business and personal (issues),” she said.

Still, she may not be making friends in county government.

“A citizen who is seeking a paid public servant position while knowingly disregarding permitting requirements fails to acknowledge fiscal or civic responsibility. When that citizen then seeks retribution for their own malice, they compromise scarce tax payer resources and condone code violation,” Commissioner Angie Homola wrote in an email.

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