COVID-19 lawsuit leverage? Court declarations accuse Douglas County commissioner of misusing office

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EAST WENATCHEE — In a May 18 meeting of the Chelan-Douglas Board of Health, Douglas County Commissioner Marc Straub had a question for health officer Dr. Malcolm Butler: Would Butler sign off on an eight-point statement about the two counties’ ability to handle the COVID-19 pandemic?

“We were, as a county, exploring all options available to us to move Douglas County forward, beyond Phase 1,” said Straub.

Less than two weeks later, that simple question would lead the state Attorney General’s office to accuse Straub of misusing his office, to strengthen a civil lawsuit against Gov. Jay Inslee. It would also create an imbroglio for the Chelan-Douglas Health District, just as the agency sought to turn the corner on coronavirus infections in the Wenatchee Valley.

At the time, Chelan and Douglas counties remained mired in Phase 1 of the state’s coronavirus recovery plan — a four-phase march toward normalcy mandated by Gov. Jay Inslee’s emergency public health orders, first put in place March 23. In Phase 1, large gatherings were banned, restaurants and bars were shuttered except for takeout service, in-person church services were shut down and schools had closed their classrooms for the rest of the academic year. The Washington Department of Health demanded each county — or joined health districts, like that in Chelan and Douglas counties — show improvements in local COVID-19 case counts before moving ahead.

On May 15, the state had turned down a proposal from the Chelan-Douglas Health District to reopen parts of the local economy, and Straub said he and his fellow commissioners were feeling public pressure.

“We had been during that time meeting with, as you can imagine, a lot of citizens, business owners, general public, others, hearing their concerns, viewpoints and frustrations, and on and on.”

The health district board has eight members, each an elected official in one of the two counties. Straub and fellow Commissioner Dan Sutton represent Douglas County. Straub said he, Sutton and the board’s third commissioner, Kyle Steinburg, put the initial draft statement together in their public session May 18. Straub typed up the draft and brought it to the Board of Health in a virtual meeting that same afternoon, and asked for Butler’s approval.

Butler, chief medical officer for Columbia Valley Community Health for 27 years, had just become health officer for the district one month earlier. He later said he had no advance knowledge of the commissioners’ request. 

Among other points, the commissioners wanted Butler to certify that local hospitals had capacity and resources to treat new COVID-19 patients; and that the health district’s pandemic influenza plan — a 12-year-old document that Butler hadn’t read — could serve as a tool in the local fight against COVID-19. “It was our belief that there were similar protocols and procedures in place to manage a respiratory illness pandemic,” Straub told NCWLIFE. “… It’s a plan that provides a basis from which to start. It’s not perfect; no plan ever is.”

After a two-day exchange of emails plus one phone call with Straub, Butler signed a revised statement May 20, saying among other things that he was “aware” of the pandemic plan, and that local hospitals had the necessary resources to deal with the public health crisis as it stood at the time. 

Two days later, Straub, Sutton and Steinburg filed a lawsuit challenging Gov. Jay Inslee’s authority to maintain the COVID-19 state of emergency. They sued not on behalf of Douglas County, but as private plaintiffs, with five other men. An identical lawsuit went forward the same day in Chelan County, guided by the same attorney, Joel Ard, and this time with four Wenatchee City Council members — including Board of Health member Ruth Esparza — among the plaintiffs. 

The dual filings meant that three out of eight board overseers of the Chelan-Douglas Health District were now declared litigants against the Governor’s public health mandates, which the health district — headed by chief administrator Barry Kling with medical supervision by Butler — was required to obey.

On May 28, Ard filed a copy of Malcolm Butler’s eight-point statement in the Chelan County court case. The Washington Attorney General’s office took notice, and in a hearing in Douglas County court, accused Straub of misusing his position as a Board of Health member.

“… It shows, probably most troublingly, a plaintiff in his private capacity in this lawsuit using his official position as a Douglas County commissioner, and as a boardmember of the health district, generating evidence for use in this lawsuit,” Assistant Attorney General Zachary Pekelis Jones told the judge.

Jones took a sworn deposition from Butler on June 8. The physician said he believed Straub had deceived him into drafting the statement. The document Straub asked him to sign, he said, “appears to have been pre-constructed specifically to support his lawsuit.”

“… What appears to have happened was that (Straub) deceived me into believing that he needed this statement to support work that was being conducted by the Douglas County Board of Commissioners,” Butler told Jones. 

“… What is most upsetting and frustrating to me is the way that the information was gained from me with clear forethought and planning to be used in a way that was not made clear to me.” Had he known his statement would be filed in a civil lawsuit, he said, he would have consulted a lawyer of his own.

Asked to comment this week, Butler said he would not have time to submit to an interview with NCWLIFE.

The three Douglas County commissioners withdrew their lawsuit on June 1, and the rest of the plaintiffs joined the ongoing lawsuit in Chelan County. Esparza likewise withdrew from that suit. Also on June 1, Straub sent a letter to the other seven members of the Board of Health, denying that he had sought to deceive Butler. 

“I take a great a deal of frustration in the suggestion that I in some way, shape, or form deceived Dr. Butler … in requesting a statement of facts,” he told NCWLIFE. “It couldn’t be further from the truth. That’s not how I’m wired. That’s not how I operate.”

Straub said he, Sutton and Steinburg had not made any decision to sue at the time they asked for Butler’s statement. He said the plaintiffs decided to file suit on May 21, the day after he received Butler’s written document.

Asked if he met or spoke with Joel Ard before May 18 about the possibility of a lawsuit, he said, “I don’t recall. Perhaps. But again, no decisions were made.”

Straub said he hasn’t spoken with Butler about the dispute.

The fallout at the Health District became evident Monday, as health administrator Barry Kling told the board his work has been hampered by the boardmembers’ litigation against Inslee. “That lawsuit has wasted an incredible amount of staff time,” he said in the meeting. “…The whole entanglement of us, as individuals or otherwise with it, has interfered with our ability to manage the COVID response, and the rest of the health district.”

Straub said he does not believe the effort to overturn Inslee’s executive orders amounts to a waste of time. 

“We are doing our level best as elected officials to get our citizens back to work, to get our businesses opened back up, to make sure that we’re not doing it in a way that would cause a second wave, which would only be damaging.”

The remaining suit against Inslee before Superior Court Judge Kristin Ferrera now involves 46 plaintiffs, including Wenatchee City Councilmembers Jose Luis Cuevas, Linda Herald and Travis Hornby; Grace City Church pastors Josh McPherson and Adam James; clothing store owner and state Republican committeewoman Marcy Collins; Wenatchee restaurateurs Kevin Smith and Shon Smith; and NCWLIFE host and former state representative Cary Condotta.