The Gangs That Can’t Get Their Facts Straight

By Norman E. Kjono, March 18, 2004

The legislative session in Washington is over, anti-tobacco activists failed to persuade legislators to impose a statewide smoking ban, and the die is now cast for aggressive media promotion of tobacco control’s agenda, until at least election day November 2004. Fresh out of a legislative session where they were summarily rebuffed by legislators, tobacco control operatives now seek to do an end run around legislative intent with a generously-funded and well-oiled initiative for a statewide smoking ban. In now-predictable style, The Seattle Post-Intelligencer has come out smokin’ less than a week after the legislature adjourned. Today’s edition of The PI includes two pieces of work that should stun even the most jaded among us as preeminent examples of sheer chutzpah, delinquent thinking, and colossal gall. That such efforts are aided and abetted by the reported point-man for Washington Breathe, Tacoma City Council member Kevin Phelps, and therefore the front man for pharmaceutical nicotine, merely adds sour icing to an already-deflated anti-tobacco cake. The Tacoma News Tribune chimed in with its own promotional editorial, which is noteworthy for its misleading characterization of what the Breathe Easy Washington statewide smoking ban actually accomplishes.

 Three local news reports for March 17, 2004 are presented below. Those reports are followed by three additional related news articles. A recent and related statement from the Occupational Safety and Health Administration (OSHA) is presented after the news items.

1. March 17, 2004 The Tacoma News Tribune joined the tobacco control advocacy band-wagon, publishing its editorial “Two Initiatives Billed As ‘Smoking Bans’ But Only One Delivers.”  The Tribune Opined:

“The first - championed by Breathe Easy Washington - would forbid smoking in [non-tribal] enclosed workplaces, period. It is inspired by the Tacoma-Pierce County Health Department's comprehensive indoor smoking ban, which bars all [non-tribal] Pierce County employers from exposing their employees to secondhand smoke. The second - championed by the Entertainment Industry Coalition - would enact a faux "ban" that would explicitly permit smoking in the very [non-tribal] establishments - taverns, lounges, etc. - whose employees are exposed to the most smoke. It would prevent local governments from going any further to protect the lungs and lives of workers. It is designed to undo Pierce County 's comprehensive ban - and prevent any other counties or cities from enacting a similar ban. Breathe Easy Washington 's measure is a [non-tribal] workplace protection measure. The Entertainment Industry Coalition's measure tries to change the subject by reframing the argument as a children's issue. Instead of prohibiting smoking in [non-tribal] places where people work, its initiative would prohibit smoking in places where minors are allowed, such as bowling alleys. . . . Which of these two groups is best trusted to write the public health policies of Washington state? To ask that question is to answer it.” (Underline added, brackets inserted for accuracy.)

The Tribune falsely says that the Breathe Easy Washington initiative would “forbid smoking in enclosed workplaces, period,” and that the Breathe ban “bars all Pierce County employers from exposing their employees to secondhand smoke.” Those statements are equally as false as a quote published by The Tribune March 15, 2004 in its article "Smoking Battle Might Go To Voters,"  by Ken Vogel. That article published a quote by Tacoma City Councilman Kevin Phelps:

 “ Pierce County 's ban and Breathe Easy's initiative protect all hospitality workers from secondhand smoke” (Italic added.)

That Mr. Phelps’ statement as quoted by The Tribune on the 15th is not true and cannot be true was brought to its attention in my March 15, 2004 E-Mails to Mr. Vogel and Mr. Phelps, as presented below at the end of this commentary’s text. Neither Mr. Vogel nor Mr. Phelps responded to the E-Mails presented. Moreover, the contradiction that such a quote presents was brought The Tribune’s attention in my E-Mail of March 6, 2004, that included draft text for a portion of my four-part series “Like The Pop-UP That Never Goes Away, Smoking Ban Won’t Quit,” for which the first installment will be published by Forces.org this coming Friday. The draft text, sent to peter.bacho@mail.tribnet.com included the following quote from Mr. Vogel’s February 26, 2004 article “Smoking Ban Won’t Quit:”

 “But coalition director Linda Matson said, ‘I am profoundly disappointed and deeply concerned about the fate of the jobs and the businesses in Pierce County .’ Her group, which filed the lawsuit on behalf of Pierce County businesses, charities and clubs, claimed businesses that complied with the ban lost smoking customers to those in neighboring counties and to the two Emerald Queen casinos near downtown Tacoma . They're not covered by the ban since they're owned by the Puyallup Tribe of Indians, which is considered a sovereign nation. ‘This ban's not going to stop people from smoking,’ Matson said. But it will protect bar and restaurant workers from inhaling cancer-causing secondhand smoke, Carlson said. He cited a study showing that one hospitality worker in Pierce County dies each month from causes related to secondhand smoke.” (Underline, bracket added.)

            The Breathe Easy Washington smoking ban initiative does not, and cannot, bar “all Pierce County employers from exposing their employees to secondhand smoke” because that initiative does not and cannot apply to tribal taverns and casinos or other establishments that operate under sovereign tribal authority. As noted in Mr. Vogel’s February 26, 2004 article that was published by The Tribune, one consequence of the smoking ban in Pierce County is that hospitality customers who choose to smoke merely go to the Emerald Queen casinos near downtown Tacoma where tribal authority permits them to do so. Even if tribal hospitality establishments voluntarily chose to comply with the mandate in Breathe Easy Washington’s initiative – and it is highly doubtful that tribal authorities would give up the competitive advantage that they presently enjoy through exemption from smoking bans -- The Tribune’s statement would still be false because Breathe’s initiative has no authority to mandate such choice.

             At this point one reasonably concludes that the Tribune’s statements about the scope and applicability of the Breathe Easy Washington smoking ban initiative are willfully false. Not only should The Tacoma News Tribune’s editorial staff be independently aware of tribal sovereign authority to assure that its editorial content is accurate, but The Tribune’s own news reports also provide information about tribal hospitality establishments that can and do allow smoking. In addition, the inaccurate nature of representations to the effect that the Breathe Easy Washington initiative bars all Pierce County employers from permitting smoking has been brought to The Tribune’s attention on two occasions by an independent person. If reporters in The Tribune’s news department choose to put the credibility of their own bylines at risk over the editorial department’s persistence in publishing false information that is their right, but the public – that necessarily relies on the credibility and integrity of both the news and editorial departments – deserves far better. Personally, I begin to wonder if Jayson Blair found a moonlighting opportunity to ghost-write editorials for The Tribune, after being fired by The New York Times for crafting false news reports.

 This is not a trivial matter of semantics. The content of The Tribune’s editorials and of Mr. Phelps’ quoted statements clearly communicate false information on which readers would reasonably rely in casting their votes, should the Breathe Easy Washington initiative gather enough signatures to be on the November 2004 ballot. Moreover, the content of Tribune’s editorials and of Mr. Phelps’ quoted statements clearly communicate false information on which persons may rely in deciding whether they will sign a petition to put Breathe’s initiative on the ballot. The demonstrable fact is that the Breathe Easy Washington initiative does not deliver as represented by The Tribune.

 As a closing comment on this issue of false reports about the Breathe Easy Washington smoking ban initiative, I mention that members of its managing staff, as well as members of the Tacoma City Council, were copied on my E-Mail of March 15^th to Mr. Phelps. We confront a situation where members of the Tacoma City Council observe one of their own members making false statements in the press about an important health initiative that negatively effects many small businesses in its jurisdiction. We also confront a situation where Washington Breathe is aware of false statements in the press by its reported point man Kevin Philips. Yet what we hear from both the Tacoma City Council and Washington Breathe is self-serving silence on that subject. As to Washington Breathe, that matter can be addressed when and if their initiative is certified for the November 2004 ballot. About the only thing that can be said for the Tacoma City Council is that it appears they did not learn very much from the tragic events involving the suicide of police chief Brame immediately after he mortally wounded his former wife: apparently silence in support of good ol’ boy behavior and their personal agendas is still the accepted routine in Tacoma. Perhaps Tacoma requires a few additional lawsuits from small business people over lost revenues to make the point.

 2. The Seattle Post Intelligencer, March 17, 2004, “Initiative Is A Real Breath Of Fresh Air,”  by columnist Robert L. Jamieson, Jr.:

“Michael Lawler Rossman -- just ‘Lawler’ to habitues of the Seattle bar scene -- wants to blow smoke back in your face. Can you blame him? The popular bartender at Pesos, a busy cantina on lower Queen Anne, can't stand cigarettes. After a night on the job, smoke funks up his hair and clothes. Exposure to secondhand cigarette smoke from customers has contributed to what doctors describe as his ‘wheeze’ -- in addition to a slight, persistent cough. ‘When someone comes in and smokes,’ the tattooed, 31-year-old non-smoker says, ‘it is like holding a knife to my neck. Why should I have to suffer the repercussions of their habit?’ My thoughts exactly. A state initiative filed this week to ban smoking in most public, indoor spaces -- including bars and restaurants -- is a good idea, rooted in common sense and precedent. It also would benefit both employees and patrons. New York and Boston have already enacted non-smoking laws. Uganda unleashed an executive order last week that bans smoking in ‘busy places where non-smokers inhale the smoke.’”

Uganda , the birth place of former dictator Idi Amin, who looted his own citizens, murdered uncounted thousands, and ran a state propaganda media machine to support doing so, has mandated a smoking ban by executive order so the United States should, too. Now there’s a stellar example of democracy in action that we should follow in the State of Washington .

Maybe we should invade Uganda . By doing so we could “democratically” assure that Uganda ’s smoking ban conforms to the mandates of Washington Breathe. The illustration is on point because the Pierce County Department of Health, like Uganda , issued its own executive branch order to mandate a smoking ban. That the mandate in Pierce County violates Washington preemption statutes and statutory exemptions apparently is to be expediently overlooked. Like minds produce similar mandates. As the adage goes, “Show me who you run with and I’ll see who you really are.”

3. The Seattle Post-Intelligencer, March 17, 2004, "Tobacco Companies May Stub Out Anti-Smoking Ads," by Nancy Zuckerbrod, The Associated Press:

 "An edgy ad campaign aimed at getting kids to stop smoking could be forced off the air because tobacco companies are refusing to keep footing the bill. . . . Tobacco companies agreed to fund the ad campaign in 1998 when the industry reached a $206 billion legal settlement with the states. But the agreement said if the companies participating in the settlement saw their market share drop below 99 percent after March 2003, those companies wouldn't have to pay for the ads anymore. . . . That happened recently as small manufacturers, who aren't part of the settlement, gained new customers. Morgan Stanley tobacco analyst David Adelman estimates those companies now have about 5 percent of the cigarette market. The industry has so far given the American Legacy Foundation $1.5 billion to pay for the truth ads, which often showcase teenagers."

 Having fulfilled all of their financial obligations through payment of $1.5 billion to the Legacy Foundation –- as agreed to and signed by tobacco control through compliant attorneys general of 46 states – under the 1998 tobacco Master Settlement Agreement (MSA), tobacco companies are now chastised by the press for not continuing to pay more. Not to mention that a central issue is that tobacco consumers, not tobacco companies, fund payments that tobacco control activists now insist continue to be paid. To illustrate, page 15 of the October 25, 2002 prospectus for Washington ’s $517 million offering of settlement revenue bonds to investors clearly states:

 “The settlement represents the resolution of a large potential liability of the [Participating Manufacturers] for smoking-related injuries, the costs of which have been borne and likely will continue to be borne by cigarette consumers.” (Bracket inserted, italic added.)

 The Big Four tobacco companies bought off the trial lawyer dogs with $206 billion of their own customer’s money and we now hear a whine from anti-tobacco activists that looting consumers of $1.5 billion – to run advertisements that dump on persons who lawfully consume legal tobacco products in paid public advertisements -- just isn’t quite enough.

 4. Related News Articles: Three related news articles add important facts to the above:

 a.) AdAge.com, March 16, 2004. Headlined “Negotiator Offers To Weaken anti-Smoking Ads,”  and written by Ira Teinowitz, that articles says in part: 

"WASHINGTON (AdAge.com) -- A lead negotiator in the 1998 tobacco settlement that launched the American Legacy Foundation's anti-smoking campaign has offered to reign in anti-smoking ad content in return for the tobacco industry's continued funding. As he urged the national's largest tobacco companies to resume paying $300 million a year into the "Truth" advertising project, Connecticut's attorney general, Richard Blumenthal, said he would be willing to "explore" restraints on edgy anti-smoking ads. While the states continue to receive billions from the settlement, four tobacco companies who settled -- R.J. Reynolds Tobacco Co., Brown and Williamson Tobacco Co., Lorillard and Philip Morris USA -- only had to fund the foundation's efforts if their market share exceeded 99.05% of cigarettes sold. Most payments ceased last year as discount brands gained market share. . . . Vermont's attorney general, Bill Sorrell, who heads the tobacco committee of the National Association of Attorneys General, conceded that states had used the settlement "like big cookie jars," rather than spending some of the money on their own anti-smoking ads. Nonetheless, he said tobacco makers should continue funding the ads. Mr. Blumenthal said attorneys general never expected the foundation money to evaporate so fast and that they actually had been assured that the money would continue. 'What they are trying to do now is violating an implicit trust,' he said."

Of course AdAge.com would publish such an article, its readers – advertising agencies – stand to collect millions in additional fees for producing the Legacy Foundation’s ads. All they need to do to continue collecting their fees is browbeat tobacco companies into continuing to hand over tobacco consumer’s Legacy Foundation payments, which they have no obligation to do, to keep the foundation gravy train rolling. Who better to put a PR spin on rank looting of consumers in pursuit of PR fee bucks than advertising agencies and the mainstream press? What is particularly unseemly is that Attorney General Blumenthal and ad agencies appear t be saying “We won’t puke on you quite so bad if you agree to keep paying us.” On the other hand, if tobacco companies agree to pay one dime more than they have an obligation to pay under the settlement tobacco consumers could step in, to put an end to that usurious foolishness.

 If Attorney General Blumenthal genuinely regards consumers refusing to pay more than agreed to be “violating an implicit trust” then Connecticut folks are in deep doo as a people. We wish Connecticut citizens well under such leadership, they will need all the positive energy support they can get.

 Let’s construct a hypothetical automobile settlement for a moment: since vehicle exhaust emissions pollute the air, and such emissions contain known human lung carcinogens as well, add an emissions surcharge on every automobile lease to fund anti-automobile advertisements. That surcharge would be tacked onto the hundreds-of-billions for a "car settlement" to recover costs of treating exhaust-related illness.  When the lease is up, and the consumer has paid every dime they agreed to and were required to pay under the written terms of the agreement, Attorney General Blumenthal can send a notice that the emissions surcharge must continue to be paid. When consumers object to mandated surcharge payments that they have no legal obligation to make just turn loose the press to “justify” unfounded payment demands in the name of “implicit trust.” Hey commuters, don’t whine. After all, it is a “fact” that you spew “known human lung carcinogens” that kill thousands of your fellow citizens each year through your irresponsible choice to lawfully drive a legal automobile.

 When consumers point out that the emission surcharge unfairly targets folks who lease cars, and not purchasers of automobiles, Washington Breathe’s PR agency could retained to provide an answer. That agency should be well prepared to do so, after all they have already prepared to loft an initiative campaign that “justifies” targeting nontribal hospitality businesses with costs and lost revenues that tribal establishments are exempt from.

 b.) January 24, 2004 Dr. Koop.com reported a story from CBS Online, “Bar Ventilation Systems Fall Short Against Smoke,”  that stated:

“In order to achieve an acceptable level of air quality in the Toronto pub's nonsmoking section, Repace said the ventilation system would have to make at least 34,000 air changes each hour -- a tornado-like level, CBC News Online reports.”

c.) March 16, 2004 The Albany Times Union reported in “Doubts Cast On Clean Air Claims,”  by James M. Odato, reported:

“James Repace, an expert on secondhand smoke, told Assembly members that purification technology will never be able to remove the contaminants generated by burning cigarettes. ‘Even if 99 percent is removed, that doesn't mean what is left is safe,’ Repace said at a news conference with reporters. Repace, who has done field studies in bars on the effects of tobacco smoke, said concentrations of carcinogens can't be removed by ventilation and filtration technology. To cut contamination to safe levels, a bar would need a machine ‘comparable to a tornado’ that produces 100,000 air changes per hour, Repace said.”

Mr. Repace’s information should be considered in light of customary ventilation systems providing 2 to 3 air exchanges per hour. It is important to point out the material and significant differences in Repace’s statements regarding air exchanges required to clear secondhand smoke in Toronto (34,000) and New York (100,000) because he also testified before the Tacoma-Pierce County Board of Health when it voted to enact the smoking ban in Pierce County during its December 2003 meeting. What information did Repace provide in Tacoma – 34,000 or 100,000 air exchanges per hour, perhaps another equally preposterous number? Based on his testimony in New York as compared to that provided in Toronto , one infers that the alleged material risk from Environmental Tobacco Smoke increased three-fold in just seven weeks between January 24 and March 16, 2004. With such widely disparate numbers, and considering the alleged risks from secondhand smoke have remained constant during that seven-week period, Mr. Repace is obviously flim-flamming either public officials in New York or those in Toronto. Well, why wouldn’t he flim-flam public health officials in Tacoma , Washington , too? And if he did so, as clearly appears to be the case based on OSHA standards discussed below, how can a smoking ban passed based on false information in Pierce County stand as a matter of law?

A Public Disclosure Request for information regarding Mr. Repace’s testimony before the Tacoma-Pierce County Board of Health was requested in writing on February 18, 2004. An excerpt from that disclosure request as filed by E-Mail, and received by me from its originator, is:

“Ms Wise,

 I have attempted to contact Rick Porso by phone for six weeks, but my calls have not been returned.  Jim La Rue has informed me that my questions must be submitted in writing to you for a response, which I regard as a further delaying tactic by the Tacoma-Pierce County Health Department.  A similar request to the Seattle-King County Board of Health was also stonewalled until I submitted a written request.

 This is a formal request for an accounting of the money paid to James Repace to attend a Tacoma-Pierce County Board of Health public meeting where the smoking ban was voted on, where he made a presentation.  Specifically, I am requesting the total sum, including travel and entertainment expenses, and the specific dedicated funding source from the TPCHD budget.   If travel and entertainment expenses are included, I am requesting an itemized list of expenses for Mr. Repace's travel and entertainment, included any paid by TPCHD employees.  Was Mr. Repace paid with funds from your general operating budget, or was the funding through your tobacco-related budget?  If so, where did that funding originate?  What was its original source?

 Has the TPCDH received funding from the Robert Wood Johnson Foundation during the last three years?  If so, what is the total amount of money received?  Has the Robert Wood Johnson Foundation promised to contribute money toward the legal defense of the Pierce County smoking ban, or for any other purpose, in the future?”

             To date – one month later – no response has been received from the Tacoma-Pierce County Health Department. Similar to The Tacoma News Tribune, it appears that county health engages in the same behavior: refuse to respond or provide information while persisting with actions based on false information. As to information regarding Mr. Repace’s testimony before the health board that it apparently relied on in  promulgating its smoking ban, that can be addressed as a matter of discovery in pending and perhaps other litigation. But that begs a larger and more important issue: what is the Tacoma-Pierce County Board of Health doing relying on such conflicting testimony to promulgate public health regulations, in the first place? What special-interest good ol’ boy network slime could be creating the smell in Tacoma , other than tide flats? Hopefully that will be dug out in litigation discovery, too.

             Finally, it bears mention that Repace is the Project Director for a $300,000 grant from the Robert Wood Johnson Foundation  of Princeton , New Jersey to be used for “Analysis of the effects of secondhand smoke in the hospitality industry.” By clicking on the “List All RWJF Grants” icon readers can determine that Tobacco Control Resource Center, Inc. is the recipient of more than $1.1 million in grants from the foundation. That grant is linked to the RWJ foundation’s smoking ban agenda by a Washington University research paper, “Estimating The Health Consequences Of Replacing Cigarettes With Nicotine Inhalers,” which I wrote about in my June 2003 commentary “XXX Products.”  That research paper, by Walton Sumner II, MD, was published by the journal Tobacco Control, which is also directly funded by a $200,000 grant from the RWJ foundation. Is sending $300,000 grant recipients into Pierce County to spread highly questionable information about tobacco, including “statistics” that change three-fold from one city to another, to influence public policy in support of its own special-interest agenda, how the Robert Wood Johnson Foundation operates?

5. In contrast to Repace’s ever-changing “statistics” about what is necessary to clear the smoke, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has issued a definitive statement about Environmental Tobacco Smoke.

OSHA published concerns about Environmental Tobacco Smoke in its April 1994 proposed Indoor Air Quality regulation. Its conclusion after a contentious seven-year regulatory proceeding was that material risk to workers health could not be established sufficient to support federal regulation. February 24, 2003 OSHA published “Reiteration Of Existing OSHA Policy In Indoor Air Quality.”  That document states:

“Although OSHA has no regulation that addresses tobacco smoke as a whole, 29 CFR 1910.1000 Air contaminants, limits employee exposure to several of the main chemical components found in tobacco smoke. In normal situations, exposures would not exceed these permissible exposure limits (PELs), and, as a matter of prosecutorial discretion, OSHA will not apply the General Duty Clause to ETS.”

During a telephone conversation with OSHA on March 4, 2004 OSHA’s Office of Health Enforcement confirmed to me that the February 24, 2003 statement is the most recent and binding OSHA statement on the subject of Environmental Tobacco Smoke. How can an air quality constituent such as tobacco smoke be unquestionably deadly when in normal work situations exposures would not exceed federal permissible exposure levels? The simple answer to that is that the constituent cannot, by definition, be deadly in normal work situations, as evidenced by OSHA refusing to promulgate a nationwide smoking ban to allegedly protect worker’s health. In the broader perspective, and in view of OSHA’s final conclusion about ETS, we need to consider that genuine clean indoor air for everyone was rejected by tobacco control based on a threat to workers health from Environmental Tobacco Smoke that OSHA says does not exist as represented by anti-tobacco.

A plausible explanation for that phenomenon – that an allegedly deadly substance is not deadly in normal work environments, after all – is found in several OSHA permissible exposure level conclusions. For example, on March 30, 1990 OSHA responded to a public inquiry regarding how much exposure to Environmental Tobacco Smoke is too much. That document, titled “Workplace Standards Establishing What Concentration Of Tobacco Smoke Is Too Much”, that listed several benchmark constituents of tobacco smoke, gave the permissible exposure level, and stated:

 “If the PEL or STEL for any of these air contaminants is exceeded, corrective action must be taken by the employer to reduce employee exposure to the contaminant. It is rare, however, that an overexposure occurs simply as a result of indoor air contaminants generated solely by smoking of cigarettes.”

The American Lung Association and the American Cancer Society played an important role in the U.S. Department of Labor’s Occupational Safety and Health (OSHA) seven-year initiative to develop clean indoor air regulations. That effort, which began in 1994, was abandoned in 2001 with the approval and support of anti-smoking activists. Please see “OSHA Withdraws Indoor Air Proposal With Support Of Anti-Smoking Groups”  December 14, 2001, which reports:

“WASHINGTON -- Assistant Secretary for Occupational Safety and Health John Henshaw announced that OSHA is withdrawing an inactive indoor air quality regulation proposed in 1994. The decision was reached with the support of major anti-smoking public health groups including the American Heart Association, the American Cancer Society, the American Lung Association, Americans for Nonsmokers' Rights and the Campaign for Tobacco-Free Kids.”

Anti-tobacco’s response has been to dramatically inflate – overstate -- alleged worker exposure levels to tobacco smoke and to persist with claims about material risk from tobacco smoke. For example, a current Washington Breathe statement  to support its drive to enact a statewide smoking ban in 2004 says “Many hospitality workers inhale the equivalent of two packs of unfiltered cigarettes a day.” In addition, a Snohomish County bulletin claims that a worker in a smoky bar inhales the equivalent of four cigarettes in two hours. Not only do the two statements conflict (if true, Snohomish’s four cigarettes in two hours equals 16 cigarettes in 8 work hours but Breathe says hospitality workers inhale 40 unfiltered cigarettes in a presumed work day) but both statements also vastly over-state actual hospitality worker exposures based on cigarette equivalent studies conducted to date.

Norman E. Kjono 

From: Norm Kjono [mailto:normkarl@earthlink.net]
Sent: Monday, March 15, 2004 5:14 PM
To: ' kphelps@cityoftacoma.org '
Cc: ' bevans2@cityoftacoma.org '; ' Julie.Anderson@ci.tacoma.wa.us '; ' cladenbu@cityoftacoma.org '; ' mlonerga@cityoftacoma.org '; ' Spiro.Manthou@ci.tacoma.wa.us '; ' Thomas.Stenger@ci.tacoma.wa.us '; ' rtalbert@cityoftacoma.org '; 'Ken Vogel'; ' bbaarsma@cityoftacoma.org '; ' kevin.knox@cancer.org '; 'Mel Simburg' ; 'swatkins@hewm.com' ; 'lawrence@prestongates.com'
Subject: Kevin Phelps Statement In Tacoma News Tribune March 15, 2004 Article "Smoking Battle Might Go To Voters"

Mr. Phelps,

Please see below my E-Mail of today to reporter Kenneth P. Vogel at The Tacoma News-Tribune. That message addresses statements attributed to you in his March 15, 2004 article about the two smoking ban initiatives presently filed in Washington . In his article Mr. Vogel identifies you as “a Tacoma city councilman who is serving as point person for Breath Easy.” A complete quote of relevant statements that I address in this message is provided in my E-Mail to Mr. Vogel, for context and your convenience. I am writing on the subject of Washington smoking ban initiatives for publication Friday, March 19, 2004. I will be addressing the subject of your apparent statement in that work. I extend the opportunity for you to change or clarify your statements as quoted below. To do so, please respond by close of business Wednesday March 17, 2004.

 For reasons as set forth in my E-Mail to Mr. Vogel, it is clear to me that the statement attributed to you, “ Pierce County 's ban and Breathe Easy's initiative protect all hospitality workers from secondhand smoke,” is not true and cannot be true. I request your correction of that statement or clarification of it.

 Certainly, as a member of the Tacoma City Council, located in Pierce County , Washington , you are aware that tribal authorities are considered to be sovereign and therefore exempt from any county or statewide smoking ban. Given your apparent involvement with Tacoma and Pierce County politics, as well as the content of recent press reports about the smoking ban in Pierce County , you must be aware that one consequence of the Pierce County ban is that hospitality businesses subject to the county ban are losing customers to tribal hospitality establishments that can and do allow smoking. Based on those facts it should be clear that your statement is not only factually inaccurate but also omits material information regarding a consequence of the smoking ban in Pierce County with which you are familiar. That issue is directly related to protecting workers in hospitality establishments because it negatively influences their employment prospects. In addition, with the apparent migration of customers from nontribal to tribal adult-venue hospitality industry establishments, it follows that eventually employees who work in that industry will go to where the work is – smoking ban exempt tribal establishments. Which of, course puts hospitality workers who change employment from nontribal to tribal establishments due to the migration of nontribal establishments’ customer base in precisely the work environment that you claim to be protecting them from, a work place that permits smoking. In view of that employment and work place phenomenon, I request that further clarification of statements attributed to you about allegedly “protecting workers’ health” by and through the Washington Breathe initiative consider that phenomenon.

 Finally, I bring to your attention that, as I am certain you are aware, the Entertainment Industry Coalition includes a provision for ventilation standards, which can not only efficiently reduce material risk from not only Environmental Tobacco Smoke but also reduce potential risks presented by other Indoor Air Quality constituents. It therefore appears to me that that the EIC initiative includes a critical and valuable provision that Washington Breathe’s initiative does not. I would appreciate it if you would address that issue in any response to me that you would care to provide.

 Thank you for your attention to these matters. I trust that you see the need to correct or clarify statements attributed to you by The Tacoma News-Tribune. Because issues such as these go to the heart of the integrity of our governing processes and the accountability of government I believe that you and other Tacoma City Council members can see the great importance of assuring they are promptly addressed.

 Thank You,

 Norman E. Kjono

(425) 497-8187

From: Norm Kjono [mailto:normkarl@earthlink.net]
Sent: Monday, March 15, 2004 1:45 PM
To: 'Ken Vogel'
Cc: [Copies Deleted]
Subject: March 15, 2004 Article "Smoking Battle Might Go To Voters"

 Ken,

 Regarding your article "Smoking Battle Might Go To Voters," www.tribnet.com/news/story/4853241p-4789915c.html well said as to its overview of the two competing smoking initiatives!

 However, while I do not question the accuracy of your quote from him, I do find Mr. Phelps' statement in your article as presented below to be quite troubling:

     "Board of health chairman Kevin Phelps said that, unlike the coalition's initiative, Pierce County 's ban and Breathe Easy's initiative protect all hospitality workers from secondhand smoke. 'Patrons have a choice of where they go. Workers don't,' said Phelps, a Tacoma city councilman who is serving as point person for Breathe Easy. . . . Phelps accused the coalition of trying to scuttle a comprehensive smoking ban by tricking voters into supporting its weaker initiative.'Their initiative is a ruse, because they're not protecting their employees,' said Phelps. 'And I think this will be borne out when the two campaigns get going.'" (Underline, italic added.)

 Mr. Phelp's statement is not true and cannot be true because tribal hospitality workers are not "protected from secondhand smoke" under either the ban or that initiative due to the fact that as sovereign nations they are exempt from smoking bans. In fact, it can be said that with persons who smoke merely going to a tribal establishment that does allow smoking could add to the "protection" problem for tribal hospitality workers because it increases the number of persons who smoke in their facilities (setting aside for discussion purposes the material issue of what hospitality industry workers are being "protected" from, to begin with.) As I recall, you have written about tribal sovereignty and the smoking ban issue in previous articles.

 Had Mr. Phelps said " Pierce County 's ban and Breathe Easy's initiative protect all nontribal hospitality workers from secondhand smoke" it could at least be argued that it accurately reflects the reality of the tribal situation. Omission of that single word "tribal" materially alters both the veracity and accuracy of Mr. Phelps' statement.

 Considering that an initiative presented to the voters, and intitiative language that the public relies on in casting its vote, must be factually accurate and truthful as to its essential facts I certainly hope Washington Breathe does not include such language in its initiative. The issue as to the above quote is not an argument about the alleged hazards of Environmental Tobacco Smoke at all, at issue is a statement that cannot be true based on well-known and clearly established tribal sovereignty exemption from any smoking ban.

 Perhaps you could clarify that point in future writings and quotes? As Mr. Phelp's statement presently stands what he said clearly misstates known facts and appears to me to be quite misleading.

 Best Always,

 Norm Kjono