The Washington state open public meetings act is one of my favorite laws. It might even be in my top five.
But in many ways, it’s a pretty lousy statute. Sure, it talks a good game: “The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know,” it begins.
Yet the only way “the people” can insist that public bodies do their business in public is to file lawsuits. And even if a suit is ultimately successful, the remedies are meager. At best, a court can order that any actions taken in an illegal meeting are nullified. The body can simply conduct a do-over in public.
Fines are allowed. But they can’t exceed $100 and, even then, aren’t permitted if the official acted in good faith, which is usually covered if they followed the advice of a government lawyer. In the 41 years since the law was adopted, no one has been fined.
There are exemptions that allow secret sessions. But, in general, the exceptions are there to protect the public, not the officials. One example is when litigation is involved. If an actual or threatened lawsuit is being discussed, it can happen in secret if “ public discussion of the litigation or legal risks is likely to result in an adverse legal or financial consequence to the agency.”
But this “potential litigation” exemption is too often used too easily, such as last week when the Pierce County Council wanted to discuss a proposed amendment to the county charter that would require that all tax increases be submitted to voters for approval.
How did the members get from a tax-related charter amendment to potential litigation? County taxes are sometimes used to repay bonds sold to fund improvements. Therefore, should the charter amendment be put on the ballot, and should it pass, and should the county sell bonds in the future, and should some tax dedicated to bond repayment be put to a vote, and should some future bond holder not like it, that bond holder might sue.
Isn’t the potential for litigation here a bit too speculative to cover a secret meeting?
“The ‘potential litigation’ provision for closed meetings is very broad and could cover many issues,” said state open government ombudsman Tim Ford. “We live in a very litigious culture. Speculation is not always necessary.”
The state Supreme Court has ruled that “a governing body is not required to determine beforehand whether disclosure of the discussion with legal counsel would likely have adverse consequences. It is sufficient if the agency, from an objective standard, should know that the discussion is not benign and will likely result in adverse consequences.”
OK, but it seems unlikely that county lawyers were able to do much more than conduct a tutorial on case law or suggest ways to phrase the charter amendment based on that law. Neither entails information that would advantage a decent bond attorney or place the county treasury at some future risk.
Toby Nixon is a former state legislator and current member of the Kirkland City Council. He’s also president of the Washington Coalition for Open Government. Nixon said he doesn’t think the Pierce Council met the three requirements of the exemption.
There is no current or threatened litigation about this matter, he wrote via email. The potential for litigation “is just too speculative to create a reasonable belief that litigation may be commenced.
“And how is public discussion of the potential litigation threat likely to result in an adverse consequence for the agency?”
No one is going to sue the Pierce County Council. If this situation is covered by the exemption, it is hard to come up with a scenario that isn’t covered. We are, after all, a litigious society.
Yet such a generous interpretation of the open meetings law hardly meets another standard created by the Supreme Court: “In accord with the mandate that the act be construed liberally, its exceptions must be narrowly construed.”firstname.lastname@example.org