On Sept. 18, 2023, former/deposed Burien Planning Commission Chair Charles Schaefer recorded a conversation with City Manager Adolfo Bailon without his consent, then posted it on X.com (formerly Twitter).

As we previously reported, Schaefer recorded his interaction without Bailon’s knowledge or consent. Bailon then filed a criminal complaint against Schaefer, claiming that Washington State law (RCW 9.73.030) prohibits recordings without the consent of both parties.

The King County Sheriff’s Office Police Report said this incident occurred in a public meeting space following a Burien City Council meeting that was open to the public, which was also recorded and broadcast online.

“No evidence that a crime occurred”

“Based on the setting of this incident, there is no evidence that a crime occurred,” police said in their report.

On Sept. 27, 2023, a Deputy reviewed this incident with Aaron Walls, a prosecutor for the City of Burien. The Deputy was informed that based on the known information, this case was not eligible for filing of criminal charges.

“Burien City Council meetings are open to the public, recorded, and published online for viewing,” the report said. “Additionally, recording by the public in the council chambers is permitted. There is not any known signage, postings, or markings prohibiting recording. It was reported that Schaefer’s recording of Bailon occurred following the conclusion of the meeting but inside council chambers.”

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Here are the details from the police report, as investigated by Jennifer Elliott:

On Monday, Sept. 18, 2023, at an undetermined time, it was reported that a person recorded a staff member of the Burien City Government without knowledge or consent.
This incident occurred at Burien City Hall located at 400 SW 152nd Street, Burien, WA 98166, in the city of Burien.
On Friday, Sept. 22, 2023, at 1331 hours, Captain T. Calabrese received an email from Adolfo Bailon, who currently holds the position of City Manager for the City of Burien. Bailon reported that he was recorded by Charles Schaefer without his knowledge or consent. The email cited RCW 9.73.030 and claimed that Schaefer was in violation. This was said to have occurred following a city council meeting at Burien City Hall and a recording was attached to the email. Bailon wished to assist in prosecution against Schaefer.
Captain Calabrese later said that he was present with Bailon after the meeting when Schaefer approached him. Captain Calabrese walked away from the two.
Burien City Council meetings are open to the public, recorded, and published online for viewing. Additionally, recording by the public in the council chambers is permitted. There is not any known signage, postings, or markings prohibiting recording. It was reported that Schaefer’s recording of Bailon occurred following the conclusion of the meeting but inside council chambers.
Investigating officer Jennifer Elliott was made aware of this incident on 09/22/23 and reviewed RCW as well as information compiled regarding rights and limits on filming in public facilities on mrsc.org. The following is an excerpt from an article presented on the site:
- “The right to record officials in the public performance of their duties likely extends to other government officials in public spaces (e.g., city hall). While there has not been a case explicitly granting such a right, the reasoning behind Lewis v. State, Dept. of Licensing would likely apply to other public employees as well. As with the traffic stop in Lewis, there is likely no reasonable expectation of privacy for a conversation between a government official and a member of the public in places that are open to the public.”
- “The Washington State Attorney General has also opined that citizens have a right to record open public meetings, such as a county commissioners meeting, giving some additional support to the notion that individuals have a right to record their government’s public conduct. Therefore it should be expected that people have the right to record any level government business that occurs in areas held open to the public.”
On 09/27/23, a Deputy reviewed this incident with Aaron Walls, a prosecutor for the City of Burien. The Deputy was informed that based on the known information, this case was not eligible for filing of criminal charges.
On Friday, 10/06/23, an investigating officers was asked to complete a case report for documentation of this incident. They located and reviewed the recorded Burien City Council meeting dated 09/18/23 with an open-source internet search. The meeting was adjourned at “10:11”, but it was not said whether this was AM or PM. The time is presumed to be 2311 as the meeting was scheduled to begin at 1900. In the recording, I could see a person with a dark, long-sleeved shirt and orange cap recording the meeting with a small electronic device that appeared to be a cell phone. They noted that he was not addressed and it appeared that he was permitted to record. Once the meeting was adjourned, the video stopped but audio could still be heard for a little more than a minute.
The officer listened to a 56-second audio file that was submitted with Bailon’s email. There was also a screenshot from the social platform “X” included in the email. The screenshot was a post by @buriengovwatch that included the same audio file. The recording was of a person asking a question about why his problem was not addressed. There was a background noise of “rustling” and I was not sure if the recording device had been concealed in a pocket or something else.
The investigator reviewed public comment guidelines and rules for council meetings on the City of Burien website.

“I did not find any specific rules prohibiting recording in public meetings,” Elliott concluded. “While this recording was reported to have occurred once the public meeting was adjourned, it is presumed that this was in a place where it was reasonable that members of the public were still present thus precluding any reasonable expectation of privacy. RCW 9.73.030 is intended to protect individuals when there is an expectation of privacy, such as in a private home or other setting where there is no public access. During public meetings, Burien City Hall is open to community members and is not a private setting.”

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