Council retreat begins with Executive Session issues and budget proposal

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By Harry Gatjens

The Edmonds City Council had day one of their two-day retreat today at the Brackett Room of City Hall. The retreat is meant to be an opportunity to discuss the larger-picture issues and help set direction for the Council’s actions for the coming year.

The session started with a discussion of whether to take actual minutes of executive sessions rather than just notes as is the current practice. City Attorney Jeff Taraday mentioned that one of the purposes of executive sessions was to keep private council members’ discussions on particular issues. He read the Revised Code of Washington where those reasons are outlined, primarily for addressing employee performance or relations issues or items where public disclosure of negotiations on contracts, real estate transactions or similar items might compromise the City’s negotiating position.

Taraday stated that taking actual minutes would require some public exposure, as they would require approval at an open meeting and there is also no guarantee that a court would hold such minutes to be exempt from public disclosure requests. He stated that many cities are now keeping no record of executive sessions to avoid such issues.

That, however, brings up the problem of how to keep track of what is decided in executive sessions. There were various perspectives put forward on what to do on the issue. Councilmember Joan Bloom made the point that ultimately the “right thing to do” was to release minutes or notes of what goes on in executive session, with the exception of perhaps personnel issues. There may be a need to delay disclosure; for example, when discussions involved negotiations or legal issues, then the right time would be after the negotiation or legal issue was resolved. But, at the appropriate time, all should be disclosed to the citizens, Bloom said.

Others thought not having things on the record was best for protecting the city from disgruntled litigation based upon executive session discussions. They treaded very lightly on the notion that these items be “non-disclosed” versus “secret.”

The ultimate decision was to try and work out the issues and make a decision on what to do some time during the first half of 2012.

Next, the council received a presentation on “Budgeting For Outcomes” for future financial budgets. The City of Redmond’s Finance Director was supposed to make the presentation but illness forced him to miss the meeting. On quick notice, Edmonds Finance Director Sean Hunstock picked up the ball and laid out the concept for the council. Basically, the concept is a variation of zero-based budgeting — rather than basing this year’s budget on last year’s actuals plus adjustments, each new budget starts from scratch based on what we need to provide to the citizens of Edmonds and how we most efficiently provide those things.

This system requires prioritizing government services and the getting proposals from the various departments, or groups of departments, on how best provide those services. Then you approve the services down the list of priorities until you use up all the available money.

The point is that special interests are not served to the exclusion of the overall priorities of the city. The hard part, of course, is determining the priorities in the first place and the developing a system to get the proposals to meet the priorities, then making the decisions.

This is not a process that a city can convert to overnight, but those cities that use the system feel it really allows them to better allocate resource to fit the needs of their constituents.

There will be more presentations and discussions on this topic in the future, and input from the public will be key in both deciding if this is a good system and if it is, developing the priorities.

Each of the various city departments then made presentations on their plans for the year, their challenges and their expected accomplishments. The presentations give the councilmembers a good look at how the departments are implementing their 2012 plans.

The final part of day one was a discussion of the city’s code and areas that need updating.

Day two of the retreat will start at 10 a.m. Friday, again in the Brackett Room. The public is invited to attend. The agenda includes:

1.            Discussion of the responsibilities of each in a Mayor/Council form of government

2.            Discussions of the Roles and Responsibilities of Council Committees

3.            Presentation on the Center for the Arts

4.            Discussion on the Role of the Economic Development Commission

5.            Introduction to Support 7 Citizen Volunteer Emergency Response

33 COMMENTS

  1. Resolution No. 853, signed by former Mayor Barbara S. Fahey on September 16, 1996 is titled as follows:

    A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
    EDMONDS, WASHINGTON, ESTABLISHING A PROCEDURE
    FOR KEEPING AND RETAINING MINUTES OF CITY COUNCIL
    EXECUTIVE SESSIONS.

    The resolution specifically mentions “MINUTES”, not notes. Sometimes the “MINUTES” are referred to as “summary minutes”. I cannot find any reference to “notes” in Resolution No. 853.

    City Council Resolution No. 853 established A PROCEDURE
    FOR KEEPING AND RETAINING MINUTES OF CITY COUNCIL EXECUTIVE SESSIONS. This was a great step towards Open Government and Transparency by our former Elected City Officials.

    Resolution No. 853 includes the following:

    WHEREAS, the City Council finds it to be in the public interest to maintain
    summary minutes of executive sessions subject to release in accordance with the provisions of state law, if and when, the reason for the executive session expires;

    I am of the opinion that Resolution No. 853 makes it clear that the keeping of summary minutes of executive sessions is in the public interest. Furthermore, the related minutes are subject to release to the public if and when the reason for the executive session expires.

    I hope any steps taken by our current elected officials will be to further increase Open Government and Transparency. I hope our elected officials make the city of Edmonds the beacon for open government and transparency in the state of Washington.

  2. Regarding the discussion of the City’s Code and areas that need updating, Planning Manager Rob Chave and Building Official Leonard Yarberry provided an excellent presentation related to this topic. I am very encouraged by the City’s commitment to updating the City’s Development Code. I am also very pleased that it will be designed to be an internet friendly document.

    I strongly encourage citizens to try and attend a portion of the retreat today if possible. It is a great way to get perspective on how our City government works and how staff interacts with the elected officials. As a citizen, I want to thank the City employees for their hard work preparing for this retreat. It was obvious to me that they were well prepared and the presentations I witnessed were professional and comprehensive.

  3. Ken,
    The reason, as I understand it, for keeping executive session meetings not open, is very limited and detailed in the RCW. and is to assure that the City’s interests in issues around litigation, real estate, and labor negotiations are not compromised. It is not for the purposes of keeping secret that which those in the executive session would rather not see disclosed to the public, nor to give the officials present in the meetings immunity from discovery of the discussions in executive sessions. Adopting a rule to abolish notes, minutes and records of such meeting takes them from being executive sessions to secret meetings, where the substance of any discussions will always remain secret.
    I think you and I very much agree on this.
    The elected officials are bound to be our representatives, and to act in a responsible manner both in public and in executive sessions. It is disconcerting that the argument that the meetings should be secret so that we, the citizens, cannot access any record of them so that there will be no litigation is non-sense.
    If executive sessions have no records, then the proper use of executive sessions is not provable. The notion that they don’t take any notes, have any records is clearly an attempt to circumvent the open meetings laws (as I read them). Whether or not any litigation is “disgruntled” is a matter for a court to decide, not a Council trying to avoid scrutiny and civil liability.
    This Council has executive sessions almost weekly. It is difficult to understand why so many are needed, and making the sessions “secret” (by virtue of having no records whatever) just sounds like an attempt by the Council to have one set of discussions in secret, and another at the open public meetings.

  4. The idea of budgeting for outcomes seems to have merit. The tricky part will be to figure out how to have departments rate their priorities. Who will do that? Would employes vote on that?No doubt some duties are mandated by law. Would each department rate their priorities and each department have a certain percentage of the budget?
    And what happens when duties cross over departments? I think learning more from Redmond and how they do the rating of priorities would be a good start.

  5. At first the thought of total transparency is very appealing. However after serving for years on the executive committees for the Seattle the Washington State and the National boards of Realtors I can see where in various instances it is not a good idea.
    When discussing a director from one State who has a drug and drinking problem or is cheating on his wife or when. A director tells us in confidence that her husband has terminal cancer we would want o protect these people and not spread the rumor through 50 States boards of Realtors.
    When dealing with Congress we never wanted them to know our game plan when it came to the protection of the public’s property rights. We wanted to pick and choose our battles and not advertise to the opposition. When it came to items like embezzelment we didn’t want that to be public knowledge until the person had their day in court. Staff salaries personal tragedy’s all manner of things that given to the rank and file could lead to litigation were not for non disclosure rules adopted by Boards of Realtors all over the Country. Edmonds is no different, certain things should not be displayed in a public forum. That’s my opinion and I’m sticking to it.
    Dave Page

  6. Hi Diane,

    Thanks for taking the time to discuss this very important issue.

    Yes, the RCW establishes a total of 14 specific reasons that warrant an Executive Session. I would like to see a higher level of analysis of the 14 reasons before the City Council calls an Executive Session.

    For example, as I sat in the audience at the City Council Retreat, the topic of “Medical Re opener” was discussed. At least I think this is the term I heard. I’m not exactly sure what “Medical Re opener” is, but the discussion quickly moved to addressing this topic in Executive Session. It is possible that this topic warrants an Executive Session under the RCW’s . . . but I would like to see deeper consideration of the RCW’s before deciding to call an Executive Session. In short, I’d prefer a City Council that goes to great lengths to MINIMIZE Executive Sessions instead of a City Council that calls Executive Sessions easily and regularly.

    I also fear that once behind closed doors, it is hard for the Elected Officials to limit their discussion to only issues related to one or more of the 14 specific reasons that warrant an Executive Session. I am of the opinion that it is human nature to discuss broader topics once behind closed doors.

    You are very correct that I agree with you that adopting a rule to abolish notes, minutes and records of such meeting takes them from being executive sessions to secret meetings. Resolution No. 853 makes it clear that the keeping of summary minutes of Executive Sessions is “in the public interest.” I fail to see how anybody can make the argument that abolishing notes, minutes and records of such meeting would now be “in the public interest” when our elected officials concluded just the opposite in 1996.

    I would strongly oppose any efforts to reduce the requirements of Resolution 853. To the contrary, I support the keeping of more detailed Executive Session Meeting Minutes.

    I continue to hope that more of my Elected Officials will take concrete actions and steps in support of greater Open Government and Transparency.

  7. Thanks for adding solid points to the discussion Dave. I fully agree that there are instances where total transparency is not a good idea. I hope I have been clear in representing that I believe that some of the 14 specific reasons for Executive Sessions require Permanent Confidentiality.

    However, I also believe that some of the 14 specific reasons for Executive Sessions require only Temporary Confidentiality As a reminder, I made the following request of candidates during election season:

    “If elected, I will support the keeping of detailed minutes for all Executive Sessions. I will closely review the 14 reasons to conduct Executive Sessions that are documented in RCW 42.30.110. I will determine which of the fourteen reasons do not require permanent confidentiality. Once those reasons are identified, I will work with my fellow elected officials to clearly establish the point in time the related Executive Session meeting minutes will be made available to the citizens of Edmonds.”

    My specific request does not require much more than Resolution 853. I’m asking for detailed minutes instead of summary minutes. Resolution 853 already states that such summary minutes shall not be released for as long as the BASIS for the Executive Session as defined by RCW 42.30.110 exists. All I am requesting is that the City Council review the 14 reasons (BASIS) for Executive Sessions and establish the point in time the related Executive Session meeting minutes will be made available to the citizens of Edmonds . . . in the situations that do not require Permanent Confidentiality.

    I’m puzzled and disappointed that more Elected Officials have not made this specific commitment, or a concrete, specific commitment in their own words. I hope more will do so.

  8. Ken, Thanks for doing all the homework and helping us all stay tuned to the factual issues about executive sessions. These issues are always difficult to understand all sides of the issues. Based on your research of the issue what are the issues if someone in the executive session releases or talks about any details that were discussed in the executive session?

    I attended the council retreat for both days and the discussion on Thurs about executive sessions was very good. Council made some very good points. Note/minute taking was discussed extensively. A key point was that notes for future reference had some supports but how do you protect these notes from a public records request when they could cause a “real” problem with a labor matter or a real estate manner. One idea discussed that would seem to increase the protection was to have the city attorney take the notes or make the record and then the attonery/client privilege argument is stronger.

    The retreat was an open public meeting and the minutes and recordings of the meeting could be helpful for the good work you are doing.

  9. Thanks Darrol for your interest in Executive Sessions. To the best of my knowledge, the details discussed behind closed doors in Executive Session are protected under Attorney CLIENT Privilege. When it comes to who has the authority to waive the Attorney Client privilege, it has been represented to me that the privilege is the CLIENT’s to waive, not the City Attorney’s. The CLIENT owns the privilege.

    As such, it is absolutely critical to identify who exactly is the CLIENT in the Attorney CLIENT relationship! Is it the Municipality as a whole? If so, the City of Edmonds’ organizational chart clearly establishes that the citizens of Edmonds are at the top of the City’s Organizational Chart. The Mayor, Municipal Court and City Council report directly to the citizens of Edmonds. This takes you right back to the concept that:

    The citizens of Edmonds, in delegating authority to the Mayor, Municipal Court and City Council, do not give our public servants the right to decide what is good for the citizens of Edmonds to know and what is not good for them to know.

    Assuming the municipality as a whole is the CLIENT, I am of the strong opinion that State of Washington law often requires the eventual release of Executive Session meeting minutes to the citizens.

  10. I’d like to continue the discussion further related to . . . who exactly is the CLIENT in the City Attorney relationship? Remember, the CLIENT owns the privilege in the Attorney CLIENT relationship. As owners of the privilege, the CLIENT can waive the privilege and make disclosure to those requesting such.

    Following are several possible answers to the question of who exactly is the CLIENT in the City Attorney relationship:

    1. The citizens of Edmonds, who pay the taxes that are used to pay the City Attorney and who sit at the top of the City’s Organizational chart.

    2. Elected City Officials, as a whole.

    3. Elected City Officials, individually.

    4. The Mayor and his staff.

    5. The Mayor as an individual.

    6. The City Council, as a whole.

    7. City Council Members, individually.

    8. City staff individually, including the City Clerk.

    Those are enough possibilities for now. Hopefully this list of possibilities will point out how critical it is to identify who exactly is the CLIENT in the Attorney CLIENT relationship.

    I strongly encourage the City to clarify once and for all who exactly is the CLIENT in the Attorney CLIENT relationship. REDACTING Executive Session Meeting minutes, EMAILS, etc. by asserting attorney CLIENT privilege requires that the City clearly identify who exactly is the CLIENT.

  11. I’ll make two additional points for now. City Attorneys provide legal advice to a wide range of individuals and groups. Following is a partial list of those who might request legal advice or guidance from the City Attorney:

    1. Citizens.

    2. Mayor.

    3. City Council members.

    4. Volunteer Boards.

    4. Department Heads, administrative officials and City staff.

    The challenge of defining whom exactly is the CLIENT in the City Attorney relationship intensifies when one considers that situations often arise involving more than one of the individuals and/or groups the City Attorney might advise.

    Finally, the following United States Court of Appeals, Sixth Circuit decision on January 9, 1998 provides more food for thought:

    134 F.3d 351
    75 Fair Empl.Prac.Cas. (BNA) 1409,
    72 Empl. Prac. Dec. P 45,161,
    48 Fed. R. Evid. Serv. 750
    John W. REED; Henry Sharber, Plaintiffs-Appellants,
    v.
    David BAXTER, Individually; City of Murfreesboro,
    Defendants-Appellees.
    No. 96-6384

    This case ruled that statements made by a client to his lawyer in the presence of a third party are not protected from disclosure by the attorney-client privilege. Communications from a meeting between the City Attorney and various City staff, elected officials, etc. are not privileged if even ONE person in that group is considered a third party rather than a CLIENT.

    I point this out to further make the case that the City of Edmonds must clarify once and for all who exactly is the CLIENT in the Attorney CLIENT relationship.

  12. Ken, Thanks again for doing all the homework and helping us all stay tuned to the factual issues about executive sessions. These issues are always difficult to understand all sides of the issues. Based on your research of the issue what are the issues if someone in the executive session releases or talks about any details that were discussed in the executive session?

  13. Hi Darrol,

    Your question is a very difficult one for me to answer. The November 1, 2011 Edmonds City Council Approved Minutes contained the following excerpt from former Mayor Cooper’s Mayor’s comments:

    Mayor Cooper was troubled the Council did not take a more conservative approach to the censure resolution. He was also troubled that someone who may have voted on the resolution took an action last week by releasing confidential executive session material to the newspaper. He was in a state of shock and disbelief after reading the Edmonds Beacon on October 26, discovering that a Councilmember or Members had openly violated RCW 42.23.070 which states no municipal officer may disclose confidential information gained by reason of the officer’s position nor may the officer otherwise use such information for his or her personal gain or benefit. RCW 42.23.050 states the municipal officer who violates the statute is subject to a $500 penalty and possible forfeiture of office.

    Darrol, I guess it is possible that if someone in the executive session releases or talks about any details that were discussed in the executive session, they might be subject to a $500 penalty and a possible forfeiture of office. The November 1, 2011 Edmonds City Council Approved Minutes also indicated that former Mayor Cooper would be asking both the City Attorney and the Prosecuting Attorney to review the matter for potential future action. Maybe citizens will be updated on this issue sometime in the future.

    Another recent local Executive Session situation involved Everett School Board member Jessica Olson. The Everett School Board censured Director Olson for various reasons, including the allegation that she acted individually without board authority, violated the board’s attorney-client privilege under RCW 5.60.060, Privileged Communications, by disclosing confidential, attorney-client privileged correspondence containing legal advice to the Daily Herald. So, I guess another possible answer to your question is that the elected official can be censured if they release or talk about any details that were discussed in the executive session.

    If able, I will try and research this further, but this is all I have for now. My next post will provide more general information which I believe is of high importance.

  14. Ken,
    I recall when the attorneys were meeting with us at “Coffee with Harry”, Mr Taraday explaining that the “client” was the City as an entity. The city attorney represents the municipality and the interests of the municipality. The City Attorney does not represent individuals or groups who are not acting on behalf of the City. Elected Officials are represented by the City Attorney as long as they are acting within the scope of their official responibilities.
    The notion that because the City Attorney attends and or takes notes for executive sessions does not automatically confer attorney client privelege. The privedge can be asserted but there must exist valid attorney client relationship. Ultimately a court determines if a privlege exists and to what extent. If an ordinance is enacted to avoid the “possibility” of “disgruntled” litigation, then it is unlikely that it would prevail in a court because the purpose of the ordinance is to restrict a citizen’s access to information without a legitimate and overiding City purpose.
    Just my opinion. Simply asserting a privilege doesn’t make it so. There is a third branch of government, the Courts, to prevent abuses of power by the other two branches.

  15. Excellent points Diane. I especially appreciate the concept that If an ordinance is enacted to avoid the “possibility” of “disgruntled” litigation, then it is unlikely that it would prevail in a court because the purpose of the ordinance is to restrict a citizen’s access to information without a legitimate and overiding City purpose.

    In my opinion, pursuing such an Ordinance or Resolution would be a significant step AWAY from Open Government and Transparency.

    On a related front, I think it is very important for the City of Edmonds to clarify once and for all who EXACTLY the CLIENT is in the Attorney CLIENT relationship. This applies to the relationship with the City Attorney, other attorney’s the City hires from time to time and attorney’s representing WCIA, the City’s insurance entity.

    Until the City has clearly identified who exactly the CLIENT is, I believe it improper for the City of Edmonds to claim that City Council Executive Session Minutes, for example, can be redacted as Attorney-client privileged after a citizen has requested such Minutes.

    I’ll have a couple more thoughts shortly.

  16. It is my understanding that Hangartner v. City of Seattle is cited often to claim that the Attorney-client privilege protects communications and advice between Attorney and client. This leads to the question of whether or not the Attorney-client privilege protects documents that are prepared for some other purpose than communications and advice between Attorney and client.

    The City determined in 1996 that it was in the Public interest to maintain summary minutes of Executive Sessions. Executive Sessions may or may not involve communications and advice between Attorney and client. When the Sessions do involve such communications and advice, I imagine the percentage of such related time varies during each such Executive Session. I’d be surprised if an entire Executive Session involve only communications and advice between Attorney and client.

    Furthermore, if the Attorney(s) attending the Executive Session do not prepare the minutes, how can the minutes be Attorney work product eligible to be protected as communications and advice between Attorney and client? These questions simply need to be addressed and I think it is in everyone’s best interest that they are addressed on a timely basis.

    The article above from My Edmonds News provides an indication that this discussion is already underway, as it states:

    “Taraday stated that taking actual minutes would require some public exposure, as they would require approval at an open meeting and there is also no guarantee that a court would hold such minutes to be exempt from public disclosure requests. He stated that many cities are now keeping no record of executive sessions to avoid such issues.”

    It is important to realize that Resolution 853 established A PROCEDURE
    FOR KEEPING AND RETAINING MINUTES OF CITY COUNCIL
    EXECUTIVE SESSIONS.

    The resolution specifically mentions “MINUTES”, not notes. Sometimes the “MINUTES” are referred to as “summary minutes”. I cannot find any reference to “notes” in Resolution No. 853.

    Hence, I think it is reasonable to conclude that there is no guarantee that a court would hold such minutes to be exempt from public disclosure requests. As such, in the spirit of Open Government and Transparency, I wish the City of Edmonds would be more proactive in the release of past Executive Session minutes to citizens who have requested such via the public record request process.

  17. Ken,
    The question of exactly whom the City Attorney represents is a good one, but there is likely not a detailed or specific answer. It will always depend on the interest of the City and any Conflicts of Interest that arise from the City Attorney’s involvement. Simply put, I don’t think it can be clearly codified.
    Attorney work product as a “privilege” is also subject to judicial review. Asserting that documents are “work product” and therefore not subject to subpoena doesn’t make it so. It is up to the courts to make that determination. It is difficult to see how Mr. Taraday taking notes in an executive session would qualify as work product routinely, though there may (and should be) instances where he gives advice that should be “work product” and privileged.
    If one believes that the City has improperly withheld documents which should be public, one can go to Superior Court and ask for relief. Only a judge (or special master), can (or should) determine the propriety of any privileges asserted.
    Because the City is not a privately held corporation, as some seem to think, but rather a public one, it is imperative that the Electeds understand their obligations to the public, and not try to “hide” things which serve no legitimate municipal purpose. Every situation will be factually different, but the overarching responsibility of the City, is to serve the citizens, not to protect the Electeds when they are acting outside the scope of their official duties. Avoidance of “potential litigation” is a bad, though appealing reason. Until the findings of the litigation are known, one cannot know if that litigation was “disgruntled” or “righteous”.
    By the way, wasn’t the reduction of legal fees by hiring the Lighthouse group something you favored and pushed for? Since the Lighthouse Group is not on the billable hours, but a flat fee, the City of Edmonds should be less fearful of litigation than Cities who have attorneys on an hourly retainer.

  18. Diane, I hope our Elected Officials will read this discussion and give it proper consideration.

    One reason I am discussing this in great detail is to expand the consideration and discussion of what truly is Open Government and Transparency. My hope would be that our elected officials would passionately pursue an expansion of Open Government and Transparency in Edmonds

    I appreciate that citizens can go to Superior Court and request relief related to public record requests. The naive idealist in me simply wishes I could trust that the City would make the same decision Superior Court would make. If there is no legitimate municipal purpose for asserting Attorney-client privilege, I wish I could fully trust that the City would appreciate its obligation to the public and release such information requested under the public records act.

    Another point, I have no way of knowing whom keeps the Summary Minutes required by Resolution 853. I believe there is a reasonable chance that somebody other that the City Attorney has done so since the resolution was passed in 1996. Perhaps somebody at the City will volunteer whom it is that keeps these minutes.

    Finally, the redacted Executive Session Minutes that I have seen include the following statement at the top of the page:

    CONFIDENTIAL
    These minutes are not to be released to the public unless approved by the City Attorney.
    Per City Council Resolution No. 853.

    The premise that the City Attorney must APPROVE the release of the Executive Session Minutes to the public appears FLAWED as the City Attorney does not own the privilege. I think the City Attorney’s role is merely to advise his client as to whether or not the client should APPROVE the release of the Executive Session Minutes to the public.

    This statement needs to be changed to indicate who has the true authority to release the minutes to the public.

  19. Ken,
    Agreed. It always comes down to trust. There is inherent tension built into the system. Discussions of not taking notes doesn’t engender trust but fosters distrust.
    I would go farther and suggest that a Code of Ethics for our elected officials would go a long way toward fostering trust and defining for both the citizens and the elected officials what their rights and responsibilites are. (A suggestion I made last year but which “died” in committee and has not been reintroduced to the best of my knowledge)..

  20. Diane,
    I forgot to let you know. They did decide at the retreat to work on a code of ethics again. Another item where your suggestions have been heard and are being acted upon. 🙂

  21. I agree Diane – and I am against action that may foster distrust.

    I fully support a Code of Ethics. Please let me know if I can help promote such efforts. Glad to see Harry mention they are going to work on this again.

    One more point I’d like to research relates to the Washington Cities Insurance Authority (WCIA), the liability insurance pool the city belongs to. I note that a legal representative of WCIA is often in attendance during City Executive Sessions. The appropriateness of WCIA’s Executive Session attendance is something I am interested in researching. In particular as it relates to potential City liability exposure involving citizens of Edmonds, specifically citizens who do not have an attorney representing them behind the closed Executive Session doors.

    That research will have to wait for another day . . .

  22. Ken and Harry,
    Harry, thanks for the update on a Code of Ethics for the City. It is refreshing to hear that it is on the table!!!!!
    Ken, a WCIA attorney present in Executive Sessions doesn’t raise any flags for me, even when the issue may involve an unrepresented citizen. WCIA attorneys do not represent the same interests as the City Attorney, and should be present to assure that WCIA is involved in matters involving them. Citizen’s should have no expectations of representation at a working session between the Council, the City Attorney, and the representatives of WCIA….the issues in those executive sessions are rightly subject to privilege, just as I would not expect to attend (or have my attorney attend) a working session among the attorney’s and principal of any case I might have against another. It is a working/strategy session to which neither the public nor the opposing party has any right to attend. Those scenarios are why the “executive session” privileges exist at all.

  23. Thanks Diane for giving me some solid concepts to consider before I spend anytime considering WCIA attendance at Executive Sessions. I’m going to sit tight for now.

    If you are looking for an interesting article to read, the Drake University Law review has an article written in 2000 titled: THE ATTORNEY-CLIENT PRIVILEGE AND THE MUNICIPAL LAWYER. It is a good article and addresses some of the issues discussed above. It has a section on “Defining the Municipal Lawyer’s Client” and another section on “Ethics Codes”.

    Have a great day and I hope you get a chance to enjoy this beautiful weather!

  24. The draft minutes related to the February 2-3, 2012 City Council Retreat are now available online. Much interesting discussion related to Executive Sessions is documented there. For example, it is stated that . . . “Currently in executive session the City Clerk takes notes but those notes are never reviewed/approved by the City Council so they do not have the status of minutes.”

    This clarifies that the City Clerk is the party that documents what takes place in Executive Session. This naturally raises the question of whether or not this documentation is Attorney Work Product and whether or not the documentation is protected as Attorney Client Privileged.

    It also raises the question of whether or not the City has been violating the requirement of City Council Resolution No. 853, which established A PROCEDURE FOR KEEPING AND RETAINING MINUTES OF CITY COUNCIL EXECUTIVE SESSIONS. .

    Resolution No. 853 includes the following (I capitalized MINUTES):

    WHEREAS, the City Council finds it to be in the public interest to maintain
    summary MINUTES of executive sessions subject to release in accordance with the provisions of state law, if and when, the reason for the executive session expires;

    I am of the opinion that Resolution No. 853 makes it clear that the keeping of summary MINUTES of executive sessions is in the public interest and that the MINUTES are subject to release in accordance with the provisions of state law, if and when, the reason for the executive session expires.

    I wonder who is responsible if the City has failed to keep the summary MINUTES required by Resolution No. 853?

    Time to research this further now that the draft minutes of the Retreat are available . . .

  25. Ken,
    That the City Clerk is the one taking notes doesn’t seem to me to be the issue.
    The issue is that the notion that because those notes are not reviewed or approved they aren’t subject to disclosure at all. Whether or not the notes (and the subject of the discussions in executive sessions) are “attorney work product” or “attorney client privilege” will hinge on the subject and content of the discussions, not the existence of notes. The Public Records Act, according to the Attorney General of WA (http://www.atg.wa.gov/OpenGovernment/InternetManual/Chapter2.aspx) shows that the law is to be narrowly construed, in favor of disclosure.
    If the City, and the City Council are not releasing records simply to avoid litigation, that is not a valid governmental reason to with-hold documents. Not taking notes (or having minutes) if done to avoid disclosure regardless of the subject matter would simply an attempt to circumvent the purpose of the the Public Records Act.
    There are reasons that some documents are never released to the public, and the Public Records Act spells those out very clearly. There is a reason for Executive Sessions, and those are also spelled out clearly in State Law. Avoiding litigation is not one of those reasons while discussing litigation and potential litigation is.
    The Court, not the City Council or City Attorney, makes the final determination if there exists a privilege or not. Because of the “narrow contraction” required by the Public Records Act, the City must prove that there is a valid reason to with-hold documents, not the other way around.
    I agree that Resolution No. 853 appears to be being ignored.

  26. Thanks Diane for sharing your thoughts on this issue. I am encouraged that the law is narrowly construed in favor of disclosure and I hope that my elected officials will determine that it is proper to release those executive session minutes for which the reason for the executive session has expired.

    As stated earlier, Resolution No. 853 includes the following:

    WHEREAS, the City Council finds it to be in the public interest to maintain
    summary minutes of executive sessions subject to release in accordance with the provisions of state law, if and when, the reason for the executive session expires;

    I would greatly appreciate it if the City would follow Resolution 853.

    As the City Council voted and passed Resolution No. 853 in 1996, The City has ALREADY found it to be in the PUBLIC INTEREST to maintain minutes of executive sessions. As such, an argument can be made that the minutes should already be as accurate as possible and that there should probably be an audio recording of executive sessions.

  27. I requested the September 16, 1996 City Council Meeting Minutes today. I was promptly provided such.

    I was very encouraged to note that Resolution No. 853 was passed on that evening’s consent agenda and that Councilmember Gary Haakenson moved, seconded by Council President Dave Earling, for passage of the consent agenda. The motion carried.

    I am happy to note that former Mayor Haakenson and current Mayor Earling were part of the City Council that found it to be in the public interest to maintain minutes of executive sessions.

  28. State Senate passes Bill granting an exemption to the Public Records Act for Executive Session recordings!

    The Olympian reported on February 16, 2012 that by a 39-9 vote, the State Senate has approved Senate Bill 6109, which would exempt video and audio recordings of closed-door Executive Sessions from public inspection and copying. But if a legal dispute arose over whether or not a closed-door meeting violated the state Open Public Meetings Act, a judge could review the tape or video of the meeting and make a determination. The Olympian stated that, as a result, local governments would no longer have an EXCUSE not to maintain a video or audio record of their closed-door meetings.

    The Olympian stated that problems arise when elected officials stray off topic during Executive Sessions, or conduct straw votes on an issue, then simply rubber stamp their decision when they return to public session.

    The Olympian reported that the state Auditor’s Office found 460 cases between Jan. 1, 2004, and Nov. 13, 2007, of illegal Executive Sessions or closed-door meetings that lacked proper notice.
    .

    The Spokesman Review published a related editorial on February 17, 2012 titled “No excuses left: Record all executive sessions”

    I recommend all who have the time read this Editorial as it is excellent.

    This is a fantastic development for those who favor Open Government and Transparency. I hope Edmonds will continue to be a leader among Washington cities. Let’s build upon Resolution No. 853 passed by our City Council in 1996, when they voted that it was in the PUBLIC INTEREST to keep Executive Session Minutes. I hope Edmonds will soon be maintaining video or audio recordings of Executive Sessions in addition to the meeting minutes already required to be kept.

  29. In an article dated February 1, 2012, Jason Mercier, Director of the Center for Government Reform at Washington Policy Center made the following points related to Senate Bill 6109:

    1. Senate Bill 6109 represents a new strategy by the State Auditor and Attorney General to help prevent misuse and violations of the state’s Open Public Meetings Act (OPMA) during Executive Sessions.

    2. The Washington Policy Center believes that to ensure Executive Sessions are not being used to evade public disclosure, the sessions should be recorded and made exempt from disclosure under the Public Records Act and from subpoena or discovery in a lawsuit.

    3. If a person filing an OPMA related lawsuit presents evidence sufficient to convince a judge that a violation had likely occurred, the recordings could be used to settle the question.

    4. When a judge finds that a challenged Executive Session included improper discussions, the recording of only the portions of the meeting that should not have occurred in Executive Session could then be publicly disclosed.

    Mercier refers to a 2008 handout by the Attorney General’s Office in support of taping Executive Sessions. Rob McKenna’s Handout is available at http://www.atg.wa.gov. the Handout provided two examples of potential OPMA violations related to Executive Sessions:

    1. The Port of Longview commissioners were in a position to replace one of the three commissioners. The two remaining members selected the new commissioner from a hat. They exited an executive session and announced the winner. This may have been in violation of the OPMA, yet there is no record or accounting of the activities that took place behind closed doors that
    could provide additional detail on this situation.

    2. The Seattle Times reported that Port of Seattle commissioners argued over whether some of them, in executive session, had promised their outgoing Port Executive a severance package upon retirement. According to the Times, there was a document, but they disagreed on exactly what it meant. The Attorney General made the point that taping Executive Sessions could also help governments recall actions taken when disputes later arise.

  30. Ken,
    Great reporting and research. Taping executive sessions, with the exemption, is an elegant solution to the problem of apparent (or real) lack of transparency. It will also force those in such meetings to be cognizant of the parameters set for executive sessions. Hopefully the Edmonds City Council will proactively adopt taping of their executive sessions.
    Thanks again Ken, for all the research and reporting you have done.

  31. Thanks Diane, I am very encouraged by the significance of Senate Bill 6109 coupled with the fact that our City Council voted in 1996 that it was in the public interest to keep Executive Session Minutes.

    I hope Edmonds will soon be maintaining video or audio recordings of Executive Sessions in addition to the meeting minutes already required to be kept.

    This topic is supposed to be addressed by our City Council in the near future. Hopefully the City Council Extended Agenda will be updated soon and made available on the new website so citizens will know when this topic will be on a future City Council Agenda. If I find out, I’ll try and remember to post the related information.

  32. The City Council Extended Agenda is available on the City’s new website. The Extended Agenda was updated March 2, 2012 and indicates that the City Council intends to set aside 30 minutes on Tuesday evening, March 20, 2012 to discuss:

    Discussion regarding the taking of minutes/notes during executive sessions.

    I continue to hope Edmonds will soon be maintaining video or audio recordings of Executive Sessions in addition to the meeting minutes already required to be kept.

  33. RCW 42.30.110 discusses Executive Sessions and explains when a “Governing Body” may hold an Executive Session during a regular or special meeting.

    RCW 42.30.020 provides the following definition of “Governing Body”:

    “Governing Body” means the multimember board, commission, committee, council, or other policy or rule-making body of a public agency, or any committee thereof when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment.

    The Municipal Research and Services Center of Washington (“MRSC”), under the category of General Government: G 4.2630 – Executive sessions, closed sessions, answers the question of who may attend an executive session of the City Council, as follows:

    “The question of who may attend an executive session, other than the council and the mayor, is determined by the council. Where appropriate, the council may invite other city officials, employees, or individuals to attend executive sessions. If the council invites others to attend an executive session, those invited should have some relationship to the matter being addressed in the closed session, or they should be in attendance to otherwise provide assistance to the council….”

    As the City Council is the entity that “may invite other city officials, employees, or individuals to attend executive sessions”, the natural question is how does the City Council make that invitation? Do such invitations have to be discussed and voted upon in an Open Public Meeting?

    I’ll ask my elected officials and see if anybody knows.

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