The Edmonds City Council invited to its Tuesday night meeting two experts who discussed the pros and cons of recording 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. After a thorough briefing and some thoughtful questions, councilmembers decided to forward the matter to the Sept. 11 Public Safety/Personnel Committee, where council committee members Kristiana Johnson and Joan Bloom will consider ideas to bring back to the council for further consideration
Those speaking on the issue included Jim Doherty, legal consultant from the Municipal Research and Services Center and Toby Nixon, president of the Washington Coalition for Open Government, who is also a former Washington state legislator and current Kirkland City Councilmember,
At issue is whether the proceedings should be recorded in writing, which is the city’s current practice based on Resolution No. 853, passed in 1996; via audio recording, which some say would be more accurate; or not at all. The issue came to the forefront during a council retreat earlier this year and has been spearheaded by newly elected Councilmember Joan Bloom, who wants to ensure an accurate documentation of these private proceedings for possible future disclosure. (You can read what she wrote about it here.)
Nixon reminded councilmembers of the basic premise of the state’s Open Meetings Act, which is to ensure that elected officials deliberate issues and taken action openly. “People don’t give public servants the right to decide what is good for people to know and what is not good for them to know,” Nixon said. Executive sessions are allowed when it is in “more in the public interest than not” that the information be kept secret, at least for a period of time.”
Under the 1996 resolution, the Edmonds City Council keeps notes of executive sessions but they aren’t official minutes, as they aren’t distributed to councilmembers afterward to ensure accuracy. That practice bothers Council President Strom Peterson, who noted during the Tuesday night discussion that the notes “aren’t reviewed and they aren’t approved by anybody.”
Nixon said that there would be several advantages to recording minutes of such sessions, including resolving disagreements about what was said; holding attorneys accountable for advice given or information provided; and improving the ability of an organization to defend itself if accused of holding an inappropriate executive session. Some argue that such recordings stifle free-flowing conversations, but “that’s the point,” Nixon added. “Having a recording… can help people focus on staying on topic.”
The downside of making such recordings is that under state law they are immediately disclosable, which could be a problem if councilmembers don’t feel it’s in the public’s best interest to make the information public right away. The Washington Coalition for Open Government has been trying for some time to pass legislation to fix the issue of what can be disclosed and when, but so far has been unsuccessful, Nixon said.
In other action, the council approved a $1,094,000 bid for decorative lighting and sidewalk enhancements on Main Street between 5th and 6th Avenues. Staff plans to have the project completed by Nov. 15, to ensure that construction doesn’t interfere with the holiday shopping season. The project is funded by state and federal grants and utility taxes.
Councilmembers also heard a report regarding whether the city should reduce or even eliminate fees it now charges for residential and commercial solar projects. Staff will continue to work on this issue and come up with recommendations for the council to consider.
I am unable to determine why a confidential copy of the Executive Session Summary Minutes is not distributed to City Councilmembers so that they can review them for accuracy and subsequently approve the minutes in a future Open Public Meeting. I believe it is possible that doing such would not impact the attorney client privilege protection status of such Executive Session Summary Minutes.
If the Executive Session Summary Minutes require correction, the Minutes could then be discussed and corrected during the next Executive Session, before being resubmitted for approval in an Open Public Meeting.
My OPINION as a citizen is that it is very possible that the City Council can review and approve Executive Session Summary Minutes. Doing so might also allow the City Council to timely determine which portions of the related minutes are not eligible for protection under the Attorney Client privilege laws. This could allow the City Council to promptly release the portions of the Executive Session Summary Minutes which are not eligible for Attorney Client privilege protection. I believe this would result in a better, more trustworthy Government.
The following is State Law – RCW 42.30.010:
Legislative declaration.
The legislature finds and declares that all public commissions, boards, councils, committees, subcommittees, departments, divisions, offices, and all other public agencies of this state and subdivisions thereof exist to aid in the conduct of the people’s business. It is the intent of this chapter that their actions be taken openly and that their deliberations be conducted openly.
The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.
[1971 ex.s. c 250 § 1.]
I really hope that the City Council seeks legal counsel on this matter as it is as complicated as it is fascinating. I make the following comments as a retired University of Washington Public Records Officer, with a 16-year tenure and after handling over 5,000 public records requests for the UW from 1986 – 1999.
One needs look at *both* the Open Public Meetings Act *and* the Washington State Open Public Records Act (RCW 42.30 and RCW 42.17, respectively) to get a clear idea of how these two statutes address the validity of calling an Executive Session, the recording of Minutes during an Executive Session, the distribution of those Minutes to third parties (general public) e.g. those who do not have ‘an state-administrative purpose’ for access to those minutes.
Firstly, an Executive Session may only be called for those situations outlined in RCW 42.30.110. The presiding officer would state, and the Minutes would reflect something like “The (body/committee) will now move to Executive Session for the purpose of discussing a (1) personnel matter (2) real estate investment matter etc.
Secondly, Minutes of Executive Sessions are under review as *exempt* from public disclosure (if a public records request for same were to be filed). In response to a request for public record from the media, public, non-administrative third parties the City of Edmonds would respond, “The requested Minutes of such-and-such Executive Session are exempt from disclosure under RCW 42.17 ( the law states “Exempting video and audio recordings of closed executive session meetings from public inspection and copying”.
It’s certainly lofty to wave in front of everyone the Preamble of the Sunshine Laws, Mr. Reidy, but it must be done with a *full and legal* understanding of the intent of the public disclosure laws. along side an appreciation of the long-range consequences of exposing the deliberative process that is valid under both the Open Public Meetings Act and the Public Records Act.
Thank you Ms. Hill for your valuable contribution to this discussion, which I agree is fascinating. I appreciate your interest in this matter and I encourage you and others to provide related feedback to our City Council. I believe the next opportunity to do so will be during the City Council Committee Meetings held on the 2nd Tuesday of each month. The related agenda has not been released yet, but hopefully this matter will be discussed in City Council Committee the evening of September 11, 2012. I hope you and other citizens will be able to attend the related City Council Committee Meeting.
I am confused by your statement that:
Minutes of Executive Sessions are under review as *exempt* from public disclosure (if a public records request for same were to be filed). In response to a request for public record from the media, public, non-administrative third parties the City of Edmonds would respond, “The requested Minutes of such-and-such Executive Session are exempt from disclosure under RCW 42.17 (the law states “Exempting video and audio recordings of closed executive session meetings from public inspection and copying”.
I have made such public record requests and the City of Edmonds has never responded by referencing RCW 42.17. The City has claimed Attorney-client privilege and work product. The City has cited RCW 42.56.070(1), RCW 5.60.060, Hangartner v. Seattle and RCW 42.56.290.
Can you please provide me the exact RCW 42.17 reference that states “Exempting video and audio recordings of closed executive session meetings from public inspection and copying”. I have made an honest effort to find it this morning and have been unable to do so.
I was under the impression that Minutes, video and audio recordings of closed executive sessions are not *exempt* from public disclosure. I thought the purpose of SB 6109 (Pridemore) was to exempt video and audio recordings of closed executive session meetings from public inspection and copying.
SB 6109 passed the Senate on February 13, 2012 (39-9-0-1), and was referred to the House State Government & Tribal Affairs Committee, where it apparently died in Committee. I imagine it will be revisited.
If RCW 42.17 already exempted video and audio recordings of closed executive session meetings from public inspection and copying, for what reason or reasons would SB 6109 have been passed?
I may be missing something here so any help would be greatly appreciated. I’m a citizen attempting to understand a very complicated topic. I appreciate your willingness to participate in this discussion.
One of the reasons that I often mention the preamble to the Washington State Open Public Meetings Act, adopted in 1971, is that it boldly discusses the sovereignty of the people of this State.
As I’ve stated before, the City of Edmonds’ organizational chart clearly establishes that the Mayor, Municipal Court and City Council report directly TO the citizens of Edmonds. 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.
The Washington Supreme Court has referred to this preamble as one of the strongest statements of legislative policy contained in any state statute.
I agree that the City Council should seek legal counsel related to the Executive Session documentation matter. I simply request that the attorney selected provide such legal counsel with full appreciation that the citizens are sovereign. The related legal guidance should be in the best interest of the citizens.
In 1996, the Edmonds City Council found 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. That City Council had full knowledge that no provision of state law required the City to keep minutes of executive sessions – yet they voted to do so anyway.
I would be greatly disappointed if the current City Council decided otherwise. I believe halting the keeping of Executive Session Meeting Minutes would be a major step away from Open Government and Transparency in Edmonds.
As a citizen of Edmonds, I greatly appreciate the efforts of our 1996 City Council to promote Open Government and Transparency in Edmonds.
City of Edmonds Resolution No. 853 was passed as part of the Consent Agenda on September 16, 1996.
Former Mayor, then City Councilmember Gary Haakenson made the motion to do so and his motion was seconded by then City Council President Dave Earling.
Resolution No. 853 established a procedure for KEEPING and RETAINING MINUTES of City Council Executive Sessions.
The WHEREAS sections of Resolution No. 853 promote open government and provide evidence that the City Council desired to do MORE than state law required them to do. These sections are as follows:
WHEREAS, no provision of state law requires the City to keep minutes of executive sessions of its City Council; and
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; and
WHEREAS, the City Council finds it to be in the public interest to provide a summary record of proceedings in order that, at some future date, the public may be advised of the substance of an executive session and in situations where such release is not appropriate, to have a record of the nature of the executive session that its decision to close a session is judicially challenged; NOW, THEREFORE, …
It is very evident that the City Council voted in 1996 that is was in the public interest to KEEP and RETAIN summary minutes of executive sessions for reasons that included potential subsequent RELEASE to citizens. The City Council was motivated to do so despite its knowledge that state law did NOT require such.
What is puzzling is why the City did not address at that time the issue of whether or not the Executive Session minutes required City Council review and approval, and if so, how such review and approval would be accomplished. The apparent failure to address this issue is even harder to understand when it appears clear that the City Council wanted to have a record of the nature of the Executive Session in the event that the City Council’s decision to close a session is judicially challenged.
The 2012 City Council retreat minutes indicate that current City Attorney Jeff Taraday stated that there is a clear distinction between notes and minutes. It was represented that Minutes may begin as notes but become minutes when the City Council has an opportunity to review and vote to approve their accuracy and in some cases make revisions which may include reviewing the audio of the meeting. It was also represented that the City Clerk currently takes notes in executive session but those notes are never reviewed/approved by the City Council so they do not have the status of minutes.
As a citizen, I find it very unsettling that the City has been keeping minutes of Executive Sessions for over 15 years and the current City Attorney recently opined that these “notes” or summary minutes do not have the status of minutes. Assuming Mr. Taraday’s point is valid, why wasn’t this considered before?
In any case, it was the consensus of the City Council during the 2012 City Council retreat to clarify, revise, and/or rewrite the related resolution. As a citizen, I hope the City Council takes solid steps to insure an accurate, complete record of City Council Executive Session Meetings is maintained, a record that can be verified at a later date if necessary. It appears that recording the Executive Sessions may be the best way to accomplish this goal.
I hope the current City Council will chose to improve upon the efforts of our 1996 City Council to promote Open Government and Transparency in Edmonds.
Dear Ken,
In clarification, and in response to your question above “under review as exempt” was meant to indicate that a public records officer may not ‘blanket exempt’ a document from disclosure, but must first review a document on a line-by-line basis, even if the document requested is in a category that would ‘seem’ to make that document exempt from disclosure.
Except for my limited ‘two-cents’, you have quite a lively monologue going. The public disclosure laws (both public records and open meetings) have undergone some interesting challenges over the years from involved citizens such as yourself.
All Best with the presentation of your points to legal counsel and the Edmonds City Council.
Thank you Emily,
I hope you and others can attend this evening’s City Council Committee Meetings scheduled to begin shortly after 6:00 pm. Many important topics being discussed and a great opportunity to see how our City Government works in a less formal setting.
I am not exactly sure what the definition of “blanket exempt” is, but I can show you many examples of public record requests that look to me as if they have been blanket exempted. I’m happy to show you these documents anytime.
One thing that has always puzzled me is how the City can claim Attorney-client privilege without the City Council voting to do so as the client. This is one of many questions I have, questions that I continue to seek answers for. In one instance, the Council voted to release page 2 of 2 of the October 18, 2005 Executive Session Minutes that had previously been redacted as Attorney-client privileged. Page 1 of 2 continues to be redacted as Attorney-client privileged even though the related Real Estate Purchase closed many years ago. Here is part of that evening’s agenda:
Regular City Council
Council Chambers, Public Safety Complex
250 5th Avenue North, Edmonds
October 18, 2005
07:00PM – 10:00PM
00. 6:30 p.m. – Executive Session regarding a real estate matter.
Emily – Thanks again for discussing this topic with me. I sincerely appreciate it.
Supporting the possibility that the City Council may be able to reach some type of consensus related to the content of Executive Sessions and whether related Executive Session information can be released is Resolution No. 1150 passed on August 7, 2007. Resolution No. 1150 includes the following:
1.2 Executive Sessions: Prior to adjournment of an executive session, the Council shall, by consensus, determine what, if any, information may be released regarding the executive session. A discussion (maybe this word should be decision instead of discussion) to release information shall be confirmed by voice motion in open session. The City Council can take action only in open session at a public meeting. In the absence of a motion and vote, no confidential information shall be released. In the event that, at a later date, the Mayor, Council President or a Council Member wishes to refer to or place information relating to executive session in the public record, the Mayor, on behalf of the Mayor or the staff or a Council Member, shall ask the Council President to place an item on an agenda for such a motion and vote. The Council Agenda item shall notify Council Members of the procedural issue to be discussed, but shall not itself release confidential information relating to the executive session.
If the City Council can legally reach consensus in Executive Session, it might be possible for them to discuss the approval of City Council Meeting minutes in Executive Session also, and then vote to approve them in Open Session.
In my opinion, Resolution No 1150 adds to the mystery surrounding why the approval of Executive Session Minutes wasn’t addressed by the City many years ago.
I hope the current City Council will chose to improve upon the efforts of our 1996 City Council to promote Open Government and Transparency in Edmonds, which I hope will include addressing the approval of the related Executive Session Minutes.