A Tacoma City Council subcommittee might have violated the state Open Public Meetings Act when it selected charter review committee finalists outside of a public meeting.
If the selection process is challenged in court, the selection of the full charter review committee could be void, an expert in open meetings law said last week.
Fifty-two people volunteered to participate in the once-a-decade review of the city charter, essentially the city’s constitution. Nine were selected as automatic members of the charter review committee — one by each council member, with a chairman selected by the mayor.
The Government Performance and Finance Committee was charged with selecting another six members to complete the 15-member panel.
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Chairman Joe Lonergan said last week that in December, he asked his committee members to each send an email with their top 15 choices from the remaining applicants. Lonergan then followed up with phone calls to the committee members to select 14 people for mid-December interviews.
The government performance members are Lonergan, Mayor Marilyn Strickland and councilmen Marty Campbell and Robert Thoms. Both Thoms and Campbell said they talked with Lonergan after they sent emails with a list of names.
After a series of interviews with candidates, the government performance committee sent a list of people for charter review committee membership to the City Council for confirmation.
Open-meetings advocates say the committee’s actions could have violated the law in two ways. By sending Lonergan their choices for interviews, the committee might have conducted a secret vote, said Nancy Krier, open government ombudsman for the state Attorney General.
“Essentially, you shouldn’t come to a collective decision outside of the public eye if you’re an entity subject to the OPMA,” Krier said.
Also, by later talking one-by-one to Lonergan to further narrow the choices, the group could be guilty of holding a “serial meeting,” said Toby Nixon, president of the Washington Coalition for Open Government.
Secret votes and a serial meeting conducted in private could, if challenged in court, reset the selection process for the charter review committee, which has held several meetings since January as it prepares to consider proposing changes to the city’s charter.
“There’s a good chance a judge would require the process to be reset back to that point,” Nixon said. But “it’s possible that the full council appointment process would be declared valid even though the narrowing (of the field of candidates) was declared invalid. It’s hard to know what any particular judge is going to do.”
Lonergan said he picked email as the venue for discussion because the committee was in a time crunch, and it was difficult to navigate vacation and holiday schedules during that time of year. Since emails between council members discussing city business are public documents, Lonergan said he thought he was following the law.
“I was working hard to make sure we were in keeping with the spirit of the law and making sure everything was open and transparent and haven’t tried to hide the ball on anything,” he said.
Lonergan said he followed up with phone calls because the emails he received had identified 20 people for interviews – too many to conduct in one evening meeting.
Nixon said if the “winnowing down” process results in a final list of candidates to be interviewed, then that action should take place in a meeting open to the public.
“Even though the public is probably aware of who the 15 finalists were to be interviewed, they don’t know how any of the people on the committee voted, and that violates the OPMA,” said Nixon, a former state lawmaker who sits on the Kirkland City Council.
Strickland said the committee didn’t violate open meetings law, and she doesn’t recall talking with Lonergan about her selections.
“We didn’t intend to do anything in secret,” she said in a brief interview Friday.
City Attorney Elizabeth Pauli said after talking with Lonergan that she doesn’t believe the state open meetings law was violated.
“We can probably all agree that there are ways that (this) could’ve happened more transparently,” Pauli said of the process. “ The interviews are public. The applications are public. I don’t think there were any violations of the act.”
Nixon said if someone were to win a lawsuit against the city in Superior Court, the decision of the government performance committee on whom to interview could be declared void. “If that were to happen, then they could fix it by doing the vote again publicly,” Nixon said.
In 2010, the city of Tacoma settled with The News Tribune and paid the company’s legal fees after the newspaper sued the city over a closed-door selection process for two vacant City Council seats. The city had narrowed the field of 40 applicants to eight finalists in private.
The council made a court-ordered audio recording of its subsequent executive session to ensure that it was discussing only the qualifications of the 40 applicants and not making selections. The council later had a robust debate about the candidates in open session.