Confidential port meetings may violate state opening meetings act

A Seattle attorney whose practice focuses on open government says a series of secret meetings between the port commissions of Tacoma and Seattle may violate state law.

Those eight confidential sessions, which began this spring and include one Wednesday morning at Sea-Tac Airport, are part of an effort of the two ports to improve their stance in the face of fresh competition from Canadian and Mexican ports, an enlarged Panama Canal and aggressive East Coast ports working to gain new business at their expense.

The two ports, while announcing those joint sessions publicly, have held all of those sessions behind closed doors citing federal law their attorneys say trumps the state Open Public Meetings Act that requires the commissions to meet in public with limited exceptions. Those exceptions involve such issues as pending litigation, real estate transactions, national security matters and personnel issues.

Michele Earl-Hubbard, a Seattle attorney with 17 years of experience in open government law, says the ports and their legal counsel are simply wrong.

Earl-Hubbard said port commissioners face the possibility of a citizen lawsuit alleging violation of the state opening meetings statute, personal fines and invalidation of any agreements they made during the meetings.

“Most importantly,” said the attorney, “they risk the loss of public confidence in their deliberations because they held confidential sessions about public business.”

The News Tribune hired Earl-Hubbard to review the issue after one of its reporters was refused entry into a joint port meeting Sept. 10 at Sea-Tac Airport.

Attorneys Carolyn Lake and Tom Tanaka, representing the ports of Tacoma and Seattle respectively, argue that federal law and regulations governing the Federal Maritime Commission allow the two ports to hold joint executive sessions to discuss their business matters. The two ports sought and received Federal Maritime Commission permission to meet together and to share information about their port operations.

They say that federal law prevails when it conflicts with state law.

“Congress has impliedly preempted state law regarding disclosure by stating that information, meeting minutes and documents of these foreign commerce records filed with the Federal Maritime Commission ‘may not be made public,’ ” the ports’ attorneys said in a joint statement.

Earl-Hubbard said those federal rules apply only to requests for FMC documents under federal freedom of information statutes. They don’t pre-empt state laws regarding open meetings.

The federal government pre-emption, said the attorney, applies to anti-trust matters, not to open meetings and public disclosure.

“Federal law can’t be cited as an excuse for ignoring state open meetings law,” she said.

The ports’ attorneys said federal law doesn’t prohibit the port commissions from holding their joint meetings in public.

But Tacoma Port Commission President Clare Petrich said the ports believe the confidential meetings were necessary to allow them to share private financial and operating information that might allow competitors or potential customers a negotiating advantage if they were publicly disclosed.

“We believe that the confidential meetings were in the best interest of the ports, their customers and the taxpayers,” said the commission president.

Efforts to reach Seattle Port Commission officers were unsuccessful Tuesday.

Petrich said the ports are planning to reach out to the editorial boards of The News Tribune and The Seattle Times to explain their stance. And at least two public meetings are in the planning stages to reveal the results of studies about the importance of the ports’ business to the community, she said.

No agreements have yet been reached between the two commissions regarding how best to alter their business plans to make them more competitive, she said.

The two ports explicitly ruled out a merger between the two entities when they announced the joint talks.