Order in council case could set legal precedent

A judge’s order this week requiring the Tacoma City Council to record an executive session is likely the first ruling of its kind in Washington, the state’s attorney general and several other lawyers said Thursday.

The unusual ruling may also help to influence other courts, governing bodies and legislative efforts that seek assurances that open government law is being upheld, they said.

“This Tacoma City Council incident illustrates why recording executive sessions is a good idea,” said Attorney General Rob McKenna, who has helped to support two past legislative proposals to require executive session recordings.

Both efforts failed, and Washington currently does not require recordings of such closed door meetings.

“We would certainly cite this kind of case as an example of why a change in law is needed,” McKenna said.

Responding to a legal motion filed by The News Tribune, Pierce County Superior Court Judge Bryan Chushcoff ruled Wednesday it’s reasonable to conclude the City Council violated the state’s Open Public Meetings Act during its actions on Jan. 6 to name finalists seeking appointment to two vacant council seats.

Under the law, governing bodies can evaluate candidate qualifications, but cannot hold votes in private. After a two-hour executive session, the council met in public and, without discussion, unanimously approved eight finalists from a pool of 44 candidates.

The city attorney later said no secret voting occurred and the law was upheld.

But William Holt, an attorney for the newspaper wrote in a petition seeking an injunction this week “It appears clear that there was some form of understanding reached in executive session.”

The newspaper had sought the injunction to halt another executive session to discuss the appointments planned by the council for Thursday.

The judge was reluctant to stop the meeting, but issued an order that required the city to video and audio record any future closed meetings the council held on the appointments. The court will hold the recordings under seal, and either the newspaper or the city could ask the judge to review them to determine if a law violation had occurred.

The ruling is “exactly what the (legislative) bill would have required in the past few legislative sessions,” said lawyer Greg Overstreet, who specializes in open government law.

“To have a judge say it ought to be done in this particular case lends credibility in arguments that it ought to be done in other cases,” he added.

Bills seeking executive sessions recordings, supported by McKenna and State Auditor Brian Sonntag, met with resistance from city and county government lobbyists and ultimately died, McKenna said.

Though another measure seeking to have closed meetings recorded wasn’t proposed again this year, that doesn’t mean he or others supporters won’t try again later, he said.

“The auditor and I both continue to be concerned that executive sessions are being misused as times,” McKenna said. “We think that recording executive sessions is a good way to resolve that.”

Karen Peterson, The News Tribune’s executive editor, said the council’s recent actions demonstrate the need for such a law.

“The judge in our case had no real way of knowing whether the Tacoma City Council violated the law. There was no record of it. The citizens of Tacoma have no way of knowing, either,” she said. “Taping executive sessions is the only way we can know for sure. If our representatives are following the law, why would they object to it?”

Michele Earl-Hubbard, another specialist in open government law, noted recording closed meetings not only provides public assurance but can protect governing bodies.

The Seattle Port Authority recently considered taping its executive sessions after realizing such recordings could defend them in legal disputes, she said.

Lewis Kamb: 253-597-8542

lewis.kamb@thenewstribune.com