(The Center Square) – A series of complaints filed late last year and early this year allege that employees with the Washington Attorney General’s Office engaged in “unethical and unlawful conduct” during the selection of a university to create a police use of force database.
Per 2021’s Senate Bill 5259, the AGO was tasked with overseeing an advisory group to develop recommendations on how to better collect police data, along with creating a request for proposal, or RFP, for a private or public university to collect and store police use of force incident data that would be available for the public to view and download.
Scales is a former King County deputy prosecuting attorney and previously served as the special assistant United States attorney for the Western District of Washington.
Scales alleged that AGO employees engaged in numerous ethical and legal violations regarding the procurement of goods and services in an effort to ensure WSU, a client of the AGO’s and the only university to put in a bid, received the contract. The AGO has a specific WSU division that includes six attorneys and three professional staff. The AGO attorneys act as general counsel for WSU by providing legal advice and acting as their legal representative.
“Their relationship is governed by the Washington State Bar Association’s Rules of Professional Conduct,” states Scales’ January 2023 complaint filed with the State Ethics Board. “These ethics rules require the AGO to advocate for their client’s interests and avoid conflicts of interest. The rules prohibit the AGO from engaging in any business transactions with their clients and this would prevent the AGO from entering into a business contract with WSU.”
In 2019, the Legislature directed the AGO to develop and submit recommendations on how to create a statewide law enforcement data collection system regarding police use of force incidents, and the AGO submitted its report in 2020. The following year, the AGO requested two pieces of legislation regarding police use of force data collection, HB 1092 and SB 5259.
While HB 1092 never made it to the House floor for a vote, SB 5259 cleared the Legislature – but not before it was amended to remove WSU’s role in managing the program and instead tasked the AGO to “engage in a competitive procurement process to contract with a Washington private or public institution of higher education to implement the statewide use of force data program.” The bill allocated $15 million for the contract.
SB 5259 also required that the AGO convene an advisory group to offer recommendations by April 2022 on how to best collect use-of-force data.
Among Scales’ numerous allegations was that the AGO employees provided information about the RFP exclusively to WSU. A month before the advisory groups’ final meeting in March 2022, WSU Associate Professor David Makin, who was in the process of writing the university’s proposal, emailed WSU Director of State Relations Chris Mulick on Feb. 18, asking him if he’d reach out to the AGO to “determine if they have a date for the release of the RFP” because he was “uncertain if I should simply email or if there is another approach” due to his receiving public records requests regarding SB 5259.
Mulick replied that he could send the email because “I have not received any such [public records] request” and then emailed AGO Legislative Director Joyce Bruce on Feb. 22, 2022, to ask her if the AGO had a time frame for when the RFP would be released. The email was forwarded to AGO Policy Analyst Kelly Richburg, who at the time was overseeing the advisory group.
In a Feb. 23, 2022, email to Mulick, Dr. Makin wrote that the three-week timeframe was a “tight response.”
AGO Communications Director Brionna Aho wrote in an email to The Center Square that “the information in the email attached was a best estimate at the time, given as the policy analyst supporting the project.”
Aho added that “the general timeline was available to anyone who followed the legislation and the advisory group’s work, and was routinely updated as needed.”
However, when Scales emailed the AGO in September 2022 inquiring when the RFP would be issued and how long contractors would have to submit a response, he was told “the RFP has not been finalized or publicized yet” and that the information would be “readily available once the RFP is finalized and released.”
According to Scales, Police Strategies had been working with Seattle University to submit a proposal that would have included several other universities and private companies. Scales said they didn’t ultimately submit a proposal due to various issues with the RFP, including a feasibility study for a database of public recordings of police use of force incidents that AGO attorneys have previously warned would violate state law; the AGO would ultimately decide whether the university had to proceed with the database.
In a December 16 letter to the AGO, Scales warned that if compelled to create the database, “any mistakes the university makes could expose it to civil and possibly criminal liability.” On the AGO’s side, the office could run afoul of the Washington State Criminal Records Privacy Act, which dictates how criminal records, which can include victim information, are handled and by what agency.
“It does not matter that Richburg’s estimate turned out to be wrong or that the RFP hadn’t been issued yet,” he added. “It is still a crime to provide non-public information to a potential RFP bidder when that same information is not provided to all other potential bidders.”
He added that the email exchange should have disqualified WSU from bidding on the proposal.
Under state law, no state employee can “make a disclosure of confidential information gained by reason of the officer’s or employee’s official position or otherwise use the information for his or her personal gain or benefit or the gain or benefit of another, unless the disclosure has been authorized by statute or by the terms of a contract involving (a) the state officer’s or state employee’s agency and (b) the person or persons who have authority to waive the confidentiality of the information.”
Scales wrote in his Jan. 23, 2023, complaint that sharing this information with WSU represented ethical and legal violations which “has given WSU an unfair advantage over other bidders. The confidential information was not made available to the public or other universities. The information was provided to WSU at WSU’s request to help them prepare for the RFP.”
The AGO also argued in a Q&A about the RFP that no conflict of interest existed because the RFP was being solely handled by its Contracts Unit, which is “located in a separate secured space from any AGO Division providing legal advice to public universities.”
However, emails obtained by The Center Square reveal that other AGO employees were working on the RFP, including Special Data Advisor Sue Feldman, who sent a draft of the RFP to attorneys at the New Jersey AGO for “high-level feedback.”
“Obviously in the 21st century people do not need to be in the same room in order to communicate with each other,” Scales wrote in his January complaint, arguing that the RFP should have been given instead to the State Department of Enterprise Services, or DES, which manages 200 statewide contracts with more than 1,750 vendors.
The AGO funds and supports the Ethics Board staff, all of whom are AGO employees. The Executive Board is made up of five members appointed by the governor for five-year terms.
Scales also filed a complaint with the AGO’s Contracts Unit in December when the RFP was still open. That complaint was dismissed because Scales’ company “is not an institution of higher education and therefore is not an eligible Bidder to this RFP.”
Scales’ January 2023 complaint against the AGO and several employees involved in the RFP was also dismissed by the Ethics Board. Executive Director Kate Reynolds wrote in a March email to Scales that “there is not enough to allege violations under the Ethics in Public Service Act as to the individually named state employees. Any personnel related issues, including whether assigned responsibilities were completed or whether they are qualified to do their jobs, for example, are not covered by the Act.”
She also wrote that “the Executive Ethics Board can only investigate complaints against individual state employees, not entire agencies. Based on this, we cannot take action in regards to how the AGO drafted the RFP, the specifics in the RFP, whether the methodology is correct, and how the RFP process was completed generally. Accordingly, we will not be taking any further action on your complaints.”
Scales in April reached out via email to the AGO Contracts Unit along with a group of legislators, reiterating his allegations. In a reply, AGO Director of Legislative Affairs Mike Webb wrote to the legislators that Scales “is not a 4-year institution of higher education, and thus he is not a potential bidder and cannot protest under procurement laws,” adding that the AGO consulted with the DES “at every step in this process.”
“The AGO routinely uses a screening process and did so in this case,” Webb wrote, adding that Scales “believes he and his entity, Police Strategies, should be a subcontractor on this project.”
Scales told The Center Square “that’s always been the AG’s point: I just want the money. We [Police Strategies] were invited into the process. We had an opportunity to work with WSU without a competitive bidding process, and we turned it down.”
The AGO and WSU are expected to finalize the contract soon.