The Open Public Meetings Act is easy.
Most meetings of governing bodies must be held in public, and all decision-making must be held in public.
It gets hard only when local governments overthink it, like when elected officials conclude that it is illegal for a majority of them to ride in the same elevator or hang out at the same chamber luncheon or cut the same ribbon.
A majority being together doesn’t violate the open meetings law unless that majority does meeting-like things — deliberating, discussing, considering, reviewing or taking final actions on public business.
Conversely, all that meeting-like stuff must be in public. And even when government bodies can meet in secret for specific reasons, they can’t vote in secret. Votes — including consensus decisions reached without a formal vote as well as negative decisions like deciding not to act or deciding who not to appoint — all must happen in an open public meeting.
But then someone tries to overthink it, like the way a committee of the Tacoma City Council late last year eliminated three dozen applicants for seats on a charter review committee.
Joe Lonergan, the chairman of the Government Performance and Finance Committee, wanted to reduce the number of people who would go through a formal interview. That makes sense because interviews take time, and the council wanted to get the charter review started.
But Lonergan asked committee members to send him — via email — lists of their top 15. Lonergan said he then followed up with phone calls in order to find commonalities to create a list of 14 finalists. Ultimately, the interviews of finalists were done in an open meeting, and six were nominated for appointment by the whole council. They joined nine others who were the choices of the nine council members.
By then, however, the process was spoiled. A decision was made to eliminate a bunch of applicants, and Lonergan said it was based on a consensus of the committee members gathered improperly.
Council members, including the mayor, claim it isn’t a violation and that lawyers disagree as to how the law would apply in this situation. But there really isn’t disagreement, only spin and rationalization. Discussions and deliberations were held, a vote was taken, a consensus was reached. All of that is meeting-like stuff that must be done in an open meeting.
In Miller v. City of Tacoma, the state Supreme Court ruled that all action, not just final action such as votes, must be in public. It is not enough to re-conduct deliberations and votes in public. The law prohibits them from happening in secret in the first place.
In Wood v. Battle Ground, the Court of Appeals said an illegal meeting can occur when members of a governing body exchange emails as a means to reach consensus.
Lonergan said he conducted his inquiry via email because he was in a hurry and thought email was the most transparent means. That is, he knew emails were subject to disclosure under the Public Records Act, so the process wasn’t really secret. But governments can’t cure a violation of the open meetings law with the open records law. And unless Lonergan told the public about the emails, how would anyone know to file a records request for them?
This violation is discouraging because this council had seemed to have figured out how to make sensitive appointments in an open, legal way. After seeming to be in violation when it selected eight finalists for two City Council vacancies in 2010, the council redid the process in public.
They were similarly transparent in appointing City Manager T.C. Broadnax in 2011, at least after abandoning the idea of using code letters in their public deliberations to keep the real names of applicants secret.
In both cases, the public was able to understand why council members favored the winning applicants over the others. That isn’t the case in the rush to appoint residents to review the city charter. By failing to fix the violations, the council hands a legal weapon to anyone who wants to block a public vote on any proposed charter amendments.Peter Callaghan: 253-597-8657