The voter’s pamphlet states, “Initiative Measure No. 1501 concerns seniors and vulnerable individuals.” We can all get behind that, can’t we? When I am deciding how to vote, and I find an initiative that, on first glance, looks like a winner, I often go to the “Argument Against” to see what the opponents are saying. Usually the opposition’s arguments are more or less obvious. But the “Argument Against” in this case surprised me, so I dug deeper.

What I found is that this measure adds exceptions to the Public Records Act that, as far as I can tell, do not benefit seniors and vulnerable individuals. The opposition asserts that these exceptions benefit the union that serves caregivers. It appears that this is true.

The measure has three essential parts. The first increases the penalty for committing identity theft against seniors (over 65) and “vulnerable adults” in some cases. Under the current law, the crime is a Class B felony (Identity Theft in the First Degree) if the perpetrator obtains more than $1500 in value, and a Class C felony (Identity Theft in the Second Degree) if $1500 or less. I-1501 raises any identity theft against a senior or vulnerable adult to Identity Theft in the First Degree. In other words, it reclassifies only those crimes against seniors and vulnerable adults that yield $1500 or less in value.

The second part relates to civil fraud cases and provides for triple damages in the event the target is a senior or vulnerable individual. It does not add any new causes of action.

Do these two changes have value? Whether a crime is a Class B or Class C felony has little deterrence effect. The difference is more retributive–meaning the size of society’s pound of flesh. Civil fraud cases against seniors and vulnerable individuals are rare. And, usually the perpetrator has little money to pay a triple-judgment. The “Argument For” speaks of “a telemarketer impersonating the IRS or a relative in distress.” The telemarketer committing obvious fraud is unlikely to be traceable or even in the US. The relative “in distress” has no money. I doubt these measures will do anything practical to protect seniors and vulnerable individuals.  These two parts of I-1501 change only two sentences in the current law.

The third part of I-1501 is the vast majority of the measure’s legal language, creating 13 new statute sections. This part prohibits government agencies from disclosing the “sensitive personal information” of “vulnerable individuals” and “in-home caregivers of vulnerable populations.” Sensitive personal information includes, among other things, names, addresses and telephone numbers. With this law, one cannot get a list of individuals licensed as in-home caregivers. (The law does allow the government to “confirm” the license or certification status “on an individual basis.”)

There are a number of exceptions. An interesting exception allows disclosure where “the information is being provided to a representative certified or recognized under RCW 41.56.080,” which is the statute providing for the certification of a union representing caregivers.

There is an important backstory here. In Harris v. Quinn, 134 S.Ct. 2618 (2014), the US Supreme Court decided that unions representing “personal assistants” cannot compel those assistants who opt-out of union membership to contribute to the union. This means that in-home caregivers who are hired by private agencies and individuals do not have to participate financially in a union for caregivers.

Those opposed to I-1501 claim that the Service Employees International Union (SEIU), which represents caregivers, are still telling caregivers that they must pay to the union. There is a video that purports to show union representatives misrepresenting the law on this after the Harris decision in 2014. With the exception in I-1501, the SEIU can obtain lists of licensed caregivers. But others, concerned with what the union is telling these caregivers, cannot.

While I can see the value in avoiding release of lists of vulnerable individuals, I cannot see the value in avoiding releases of lists of licensed caregivers. How does this help the vulnerable?

Worse, we must be very careful when creating exceptions to the Public Records Act. The PRA is a “sunshine law” that we depend on to know what is going on in our government and to hold it accountable. While there are worthy exceptions to the PRA to protect privacy, I-1501’s exceptions relating to caregivers do not meet this standard.

The bottom line is that the opposition’s allegations regarding the real purpose of I-1501 appear to be accurate. This law will do little to protect seniors and vulnerable individuals and will serve the purposes of the SEUI.

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