In writing, on tape or not at all? Council discusses whether it should document executive session proceedings

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Updated with additional actions taken at Tuesday meeting

Whether Edmonds should change the way it records the proceedings of its executive sessions — which councilmembers are legally allowed to conduct in private to discuss matters related to personnel, real estate or litigation — was the topic of discussion at the Edmonds City Council meeting Tuesday night.

At issue is whether the proceedings should be recorded in writing, which is the city’s current practice based on a resolution passed in 1996; via audio recording, which some say would be more accurate; or not at all. The issue came to the forefront during the council’s recent retreat; ensuring an accurate documentation of these private proceedings for possible future disclosure is an issue that new Councilmember Joan Bloom has been passionately advocating for. (You can read what she wrote about it here.)

City Council President Strom Peterson said he would prefer that nothing be recorded , noting that executive sessions are an opportunity for the council, mayor and city attorney “to have the ability to have a free flow of ideas on a very limited number of sensitive subjects…that just aren’t meant for the public.”

Bloom disagreed, adding that more thorough documentation “would instill more trust. You can’t expect people to just trust that you are doing everything right. Elected officials don’t always do that in our country,” she said. “Having been a citizen and now being an elected official, I feel it’s really important for us to be able to show our work.”

If the council was challenged on its decision to meet behind closed doors, an audio recording could provide proof that the council complied with the State’s Open Public Meetings Act, Bloom added.

City Attorney Jeff Taraday noted that an audio recording “would give us a lot more information than the notes do,” but added that the City could also go the other direction and discontinue documenting executive sessions altogether. Edmonds is one of very few cities — if not the only city — in the state that requires note-taking in executive sessions, Taraday added.

“What we are doing is highly unusual,” he said.

Noting that the state Legislature is currently discussing possible changes to state law governing the recording of executive sessions, Peterson suggested that council wait to see if the Legislature takes any action before further debating the issue.

In other action, the council:

– Approved an ordinance amending the Edmonds City Code to extend the Economic Development Commission Sunset Date from April 30 of this year to Dec. 31, 2015. The ordinance spells out requirements for commission membership, including the ability to replace any commissioner who fails to attend three consecutive commission meetings and a statement that elected government officials won’t be eligible for appointment to the commission. However, both the City Council and Edmonds Port Commission can appoint one of its members to serve in a non-voting capacity. In addition, after a lengthy debate the council approved an amendment to stagger commission member terms in this way: those on the commission as of Dec. 31, 2011 will have their terms expire Dec. 31, 2012; members appointed during 2012 shall have their terms expire Dec. 31, 2014, and those appointed during 2013 or later shall have their terms expire on Dec. 31, 2015.

– Heard a presentation on the City of Edmonds Municipal Energy Plan prepared by Cascadia Consulting that noted that while the city spends $1.1 million on energy with the biggest chunk — 35 percent — used to operate the city’s wastewater treatment plant. The report, prepared to help city officials determine the best ways to become more energy efficient, noted that municipal energy use has declined 15 percent since 1999 but offered several suggestions aimed at helping Edmonds city government further reduce its energy costs. Among them: outdoor lighting improvements, converting to a more energy-efficient police fleet and use of alternative fuels whenever possible. Edmonds already has a reputation statewide for its sustainability initiatives, the reported added.

– Learned about the city’s new Flower Basket Donation Program, which is described in more detail here.

– Confirmed appointments of Beverly Shaw-Starkovich to the Arts Commission and Marlene Friend and Kay
to the Sister City Commission. An appointment to the Architectural Design Board was delayed to a future meeting.

16 COMMENTS

  1. I believe it should be filmed..it does seem to keep people honest, as well as, it would be good to go back if there was any discussion to review old films.

  2. The 14 exceptions to the Open Public Meetings Laws were not put into place to give the City Council “free flow of idea” or “protect their privacy”, they were put in place to serve the interests of the City in dealing with matters which if made public would disadvantage the City in some way. It is not an opportunity to have a secret meeting for which there is no accountability on the part of the Council. The Council is accountable to the Courts for those “sessions”. There are penalties to Council members who engage in Executive Sessions which are improper.

    “RCW 42.30.120
    Violations — Personal liability — Penalty — Attorney fees and costs.

    (1) Each member of the governing body who attends a meeting of such governing body where action is taken in violation of any provision of this chapter applicable to him, with knowledge of the fact that the meeting is in violation thereof, shall be subject to personal liability in the form of a civil penalty in the amount of one hundred dollars. The civil penalty shall be assessed by a judge of the superior court and an action to enforce this penalty may be brought by any person. A violation of this chapter does not constitute a crime and assessment of the civil penalty by a judge shall not give rise to any disability or legal disadvantage based on conviction of a criminal offense.

    (2) Any person who prevails against a public agency in any action in the courts for a violation of this chapter shall be awarded all costs, including reasonable attorney fees, incurred in connection with such legal action. Pursuant to RCW 4.84.185, any public agency who prevails in any action in the courts for a violation of this chapter may be awarded reasonable expenses and attorney fees upon final judgment and written findings by the trial judge that the action was frivolous and advanced without reasonable cause.

    [1985 c 69 § 1; 1973 c 66 § 3; 1971 ex.s. c 250 § 12.]”

    The Council should adopt recording of the Executive Sessions, and be very clear about what is and isn’t proper in those meetings. Making the substance of those meeting very difficult to ascertain rather than allowing the process of fairness (record the sessions and if needed make the tapes available to a judge) is simply arrogant and likely illegal. The Council is allowed to meet in Executive Session because we, the people, allow them to and recognize the need for them. To not take any notes, make any recordings, or have any other documentation is in direct opposition to the Open Public Meetings Act. The legislature is contemplating granting an exemption for such recordings so that the propriety of those recordings can be fairly assessed by a Judge and not subject without review to a Public Records request.
    Mr. Peterson also wanted to schedule the budget discussions not be televised, because he didn’t want public criticism of ideas that may or may not be adopted. Saying that they are interested in Public Input, but not allowing those who would rather watch it on tape the opportunity to hear the ideas is non-sense. Wondering why people aren’t involved while ignoring the basics of the open public meetings laws. (In spirit if not in legal technicalities).
    I would trust a Council that tapes their Executive Sessions. The tapes assure me that they are not hiding anything or attempting to hide anything.

  3. Excellent points Diane.

    I encourage all who can to watch the related City Council Meeting on television. Full Council meetings are broadcast daily on Comcast channel 21 and Frontier channel 39. Time: Noon, and 7 p.m.

    As a reminder, the September 16, 1996 City Council Meeting Minutes indicate 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.

    I am of the opinion that it is still very much in the public interest to do so.

  4. Ms. Bloom has it right, Mr. Peterson has it wrong. A Council Member is representing the public and should be willing to go on the record in executive session via written, recording, whatever. I do not believe a member has the ability to pick and choose what the public should hear in any sessions.

  5. Diane,

    You make excellent points. Trust must be earned, and taping executive sessions, and taking minutes of the sessions, is one way for council to earn the citizens’ trust.

    At Council meeting last night, the Cascadia Consulting Group presented the City of Edmonds Municipal Energy Plan. Between 1999 and 2010, Edmonds reduced its energy use by 15%, and is seen as a leader in Washington (state) in reducing energy use. Edmonds also has the opportunity to be seen as a leader in open government and transparency by being one of the first cities in the state to tape Executive sessions. Instead of questioning why Edmonds is taking minutes when other cities aren’t, we should be proud of being a leader in doing so, and take the obvious next step.

  6. All of you who are for open goverment I applaud you, but where have you been. This has been an issue for quite some time. Joan dont let this issue drop between the cracks as so many other issues have. Lets not compare Edmonds to other cities. Its great to look a other cities but lets do what is best for the citizens of Edmonds. Using the excuse of not being able to have a free flow of ideas is just not a good excuse.

  7. I fully support taping executive sessions. The more open the better. Executive sessions should only delay (not stop) the release of council comments until the need for the executive session is passed. For example, negotiating a purchase of land must be done in executive session to keep the price down, but once the deal is done, there is no reason why the public shouldn’t know what was said in the executive session. Same thing with legal issues. Once the legal issue is resolved, the executive session comments should become public.

  8. I agree Dave.

    For example, let’s look at three of the fourteen reasons to hold an executive session and consider whether these three reasons require Permanent Confidentiality. Please see (b), (c) and (d) below:

    RCW 42.30.110
    (1) Nothing contained in this chapter may be construed to prevent a governing body from holding an executive session during a regular or special meeting:
    (b) To consider the selection of a site or the acquisition of real estate by lease or purchase when public knowledge regarding such consideration would cause a likelihood of increased price;
    (c) To consider the minimum price at which real estate will be offered for sale or lease when public knowledge regarding such consideration would cause a likelihood of decreased price. However, final action selling or leasing public property shall be taken in a meeting open to the public;
    (d) To review negotiations on the performance of publicly bid contracts when public knowledge regarding such consideration would cause a likelihood of increased costs;

    After the City has purchased, leased, sold or leased out real estate and the transactions are finalized and closed, there are no longer risks that the related prices will be increase or decrease if the citizens have knowledge of the pending transactions. There is a clear point in time when the related transaction is no longer pending.

    After negotiations on the performance of a publicly bid contract are completely finished, there are no longer risks of increased costs if the citizens have knowledge of the negotiations. There is a point in time where the negotiations are finished.

    My simple belief is that these three reasons for executive sessions are for Temporary Situations which do not require Permanent Confidentiality. At the end of the Temporary Situation, the citizens have a right to know what was discussed in the related executive sessions.

    I believe there are additional Temporary Situations among the fourteen reasons to hold an executive session. I would appreciate the opportunity to sit on a committee with fellow citizens to help identify these Temporary Situations.

    Edmonds has a fantastic opportunity to be a leader and proponent of Open Government and Transparency. I strongly encourage all of our elected public officials to take a stand.

  9. As I viewed Tuesday Night’s City Council Meeting on television, I noted much discussion of the concept that the City’s current practice is to keep “notes” of executive sessions, not “minutes”.

    Resolution No. 853 was signed by former Mayor Barbara S. Fahey on September 16, 1996. The resolution specifically requires “minutes”, not “notes”. Sometimes the “minutes” are referred to as “summary minutes”. I cannot find any reference to “notes”, in Resolution No. 853.

    I think that the City must exercise integrity and immediately start keeping “minutes” of Executive Sessions. Such is required by the City’s own laws.

    Doing so will promote Open Government and Transparency, which is in the public interest.

  10. Clearly, the City is violating it’s own resolution. The Council seems to feel that continuing with the practice of not keeping the required minutes will suffice until they decide what they will want to do in response to the Legislative bill’s likely passage.

    What can the citizen’s do about it? Ms. Bloom is the only Council person who seems to clearly understand the term “transparency” and is working to see that following the laws, and specifically the spirit of the Open Meetings laws are followed both in spirit and practice.

    What can we do, to force the Council to follow the resolution, and to do it retroactively to comply with Resolution No. 853? Supporting Ms. Bloom in her efforts is obvious, but is there more we can do? Any thoughts???

  11. Yes attend council meeting and voice your opinions, write letters to the papers and email the coincil. Forming a commitee of citizens to to look at executive sessions is a great idea. The council has to be made aware of the citizens wanting them to obey the law. Getting an ethics policy passed would also help.

  12. Diane, you ask “What can the citizen’s do about it?” Don provides some good advice. I would add however that it should not be the citizen’s BURDEN to get our elected officials to comply with Resolution Number 853. The elected Officials take an Oath of Office in which they pledge to faithfully and impartially perform and discharge the duties of their office. I would argue that keeping Executive Session minutes is a duty of their office, as such is required under Resolution 853.

    I think it would be wise for the City to carefully review the related laws. For example, RCW 42.30.110(2) clearly states that the executive session may be extended to a stated later time by announcement of the presiding officer. Despite this, I think it is regular practice in Edmonds for the City Clerk to make the public announcement that the Executive Session is being extended. For example, on March 20, 2012, at 6:35 p.m., Ms. Chase announced in Council Chambers that 5 additional minutes was required in executive session. It is a small point, but the law clearly says this announcement must be made by the presiding officer. Small points like this should be easy to follow and again it should not be the citizen’s burden to point out that RCW 42.30.110(2) is not being followed.

    Finally, I support the adoption of an Ethic’s policy as recommended by Don. To the best of my knowledge, Edmonds does not have its own Code of Ethics.

    There was discussion regarding the establishment of an Ethics Board by Strom Peterson during the September 6, 2011 City Council Meeting “Continued Discussion and Potential Action Regarding Haines Wharf.” Then, during the September 20, 2011 City Council Meeting it was reported that further discussion on an Ethics Board would be held at an upcoming Public Safety & Human Resources Committee Meeting. I’m not sure what happened or where this issue is at. The City’s website does not list an Ethics Board, so perhaps this issue is still pending.

  13. City Council President Strom Peterson has informed me that he plans on putting further discussion on an Ethics Board on the personnel committee agenda next month. I hope many citizens will be able to attend this meeting of the personnel committee.

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