State high court refuses to recall city council members

From the Fall 2001 issue of The News Media & The Law, page 38.

City officials in a small Washington city lawfully excluded the public from council meetings between its members and the city attorney, even when the members voiced their support behind closed doors in joining a lawsuit against a citizen-backed initiative.

The Washington Supreme Court, in a one-page, 6-2 decision released Sept. 6, held that Lakewood City Council executive sessions could be held in secret when council members discussed litigation matters with the city’s attorney.

One justice strongly dissented and argued that, because public knowledge of the discussion would not have resulted in adverse legal or financial consequences, the secret executive session was unlawful and should have been open.

The Lakewood case arose in November 1999, after state voters passed an initiative against high annual automobile licensing fees. Initiative 695, which was effective Jan. 1, 2000, replaced the state’s 2.2 percent motor vehicle excise tax with a flat $30 fee. The initiative also required voter approval for future tax and fee increases — from library fines and school lunches to state sales and property taxes.

More than a half-million voters signed petitions for the initiative, making I-695 one of the most highly voter-supported initiatives in the state. It even won the endorsement of the state GOP, which had just persuaded voters to pass a $2.4 billion transportation plan the previous year.

The constitutionality of I-695 was challenged by cities and organizations that were funded by the previous tax. Opponents of I-695 felt that essential state services, including transportation, police and fire services, would be sacrificed as a result of the reduced revenue.

In December 1999, the Lakewood City Council discussed behind closed doors a proposal to use public resources to join litigation to defeat I-695. The executive session included council members, City Attorney Daniel Heid and City Manager Scott Rohlfs. By the end of the session, the council supported the proposal. The decision was not made in public.

Several citizens challenged the council members’ decision and petitioned for the recall of the council on allegations that they violated Washington’s open meetings law.

David Anderson, Ron Cronk, Lisa L. Shanahan, John Arbeeny, Robert V. Zemmers and Todd Smith argued that the council members had “voted” in executive session when they supported the city manager’s decision to join the lawsuit. By law, votes must be taken in public.

A trial court, however, concluded on June 2, 2000, that no vote was taken when the council members excluded the public.

The Washington Supreme Court in its Sept. 6 decision upheld the trial court decision and dismissed the recall petitions against seven Lakewood City Council members.

The majority of the court found that the discussion between the council members and the city attorney on the issue of whether a city should join litigation fell under attorney-client privilege and did not violate state law, so long as the decisions made in the meeting did not likely cause adverse legal or financial consequences.

“The Legislature sought to balance the public policy against secrecy and governmental affairs and the attorney/client privilege,” the court said. “Its constitutional foundation is found in the Fifth Amendment privilege against self-incrimination, the Sixth Amendment right to counsel and the due process clause of the Fourteenth Amendment. These rights can only be protected if there is candor and free and open discussion between client and counsel.”

Because there was no clear evidence of a vote, the court decided that the council took no prohibited action in executive session. The court further concluded that adverse consequences would have resulted had the public had knowledge of the preliminary discussions with counsel.

The city manager also was held to have sufficient authority under a 1999 resolution that raised the city manager’s spending authorization from $10,000 to $50,000 and did not require any support or vote from the city council.

In dissent, Justice Richard B. Sanders argued that governing bodies are not at liberty of including some members of the public and excluding others from executive sessions. Sanders said the fact that officials such as Rohlfs was present made it unlawful for the city council to close the meeting.

“No doubt disclosure is sometimes embarrassing to public servants who would prefer to act behind a veil of secrecy for reasons of political expediency; however, secrecy is precisely what the Open Public Meetings Act . . . was designed to prevent,” the judge wrote in his dissent. “[T]he majority’s decision necessarily defeats the narrow statutory limits to this exception, thereby undermining the broad protections afforded to the public by the [act]. It invites secrecy in governance and shields public officials from public responsibility for their acts.”

As for the lawsuit challenging the validity of I-695 itself, the Supreme Court on October 26, 2000, struck the measure down in an 8-1 decision because the title of the initiative was misleading and the law had two subjects. But the state legislature had already approved of the initiative, and the governor signed it into law. (In re The Recall of Lakewood City Council Members) — MM