Council mulls changes to executive session minutes, quasi-judicial role

City attorney Jeff Taraday
City Attorney Jeff Taraday

The Edmonds City Council agreed during its Tuesday night work session to continue discussing two potential changes to how the city and the council conducts business: No longer taking minutes during executive sessions and ending the council’s role as a quasi-judicial body regarding appeals of land-use decisions.

In both cases, councilmembers said they wanted more time to obtain additional details and also to receive public input about the ramifications of making the changes. But generally the body was open to both transitions, as outlined by City Attorney Jeff Taraday and — in the case of the minute-taking — City Clerk Scott Passey.

The issue of executive session minute-taking goes back to 1996, when the city council passed Resolution 853 calling for the city clerk to take “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.”

First, Taraday noted, official minutes aren’t taken at executive sessions; they are really notes. That’s because unlike routine minutes from council business meetings and work sessions, executive session minutes aren’t reviewed, corrected and approved by council members.

Second, while it appears the intent at the time was to allow future disclosure of what took place in executive session, even if was several years later.  “For certain types of executive sessions, that works,” Taraday said, using the example of a real estate purchase that could be made public once the sales transaction was complete. But if the executive session involved legal advice, which is often the case, then such notes would never be disclosable.

“That attorney-client privilege never expires,” Taraday said. “There are citizens who because of the language used in the resolution expect that someday they will be able to read these executive session notes,” but that is unlikely to happen in most cases, he added.

City Clerk Scott Passey
City Clerk Scott Passey

Both Taraday and City Clerk Scott Passey said they surveyed their city attorney and city clerk peers to see what other municipalities regionally and statewide are taking minutes of executive sessions. Of 47 cities Passey surveyed — ranging in size from Seattle to Omak — none are keeping executive session minutes. Among city attorneys, only the Port of Seattle keeps minutes of executive sessions and those are done by videotaping, Taraday said.

In many cases, municipalities will simply note who was present and the topic discussed — “That’s it,” Taraday said.

Passey noted that both the both the clerk’s office and city attorney’s office spend many hours poring over executive session minutes to determine what is disclosable and what isn’t. “We have a current request in the clerk’s office for all of the city council’s executive session minutes since 1996 — so that’s 20 years’ worth of minutes that we have to parse, and will likely take us months to complete,” Passey said.

“I’d like the council to consider the cost-benefit of taking these minutes,” he added.

Councilmember Tom Mesaros spoke in support of eliminating the minute-taking, but keeping track of attendance and topic, noting any action taken as a result of an executive session discussion must be done in an open public session. Councilmember Dave Teitzel added that “I’m not sure that what we’re doing is creating more transparency” through the note-taking process. “I think there’s an illusion of transparency that’s not real,” he said.

What I would like to do is hear from citizens,” said Councilmember Adrienne Fraley-Monillas.”This is a policy that’s been in effect for 20 years. I would like to have the citizens have an opportunity if they wish…and come up and give their three minutes of whether they think we should be doing this or not.”

City Attorney Taraday will draft a motion regarding the elimination of executive session minute-taking that will be presented to the council in two weeks; City Council President Kristiana Johnson said that citizens will have an opportunity during the next three council meetings to make public comment about the issue before the council makes a final decision.

As for the matter of quasi-judicial hearings, Taraday explained that when it comes to appeals of land-use decisions, the city council is empowered to sit in a judicial capacity — essentially as judges — which puts them in a much different role than the legislative role that they are used to. “You aren’t bound by strict criteria or standards when you make those legislative decisions,” he said.

“It puts you in a very difficult position,” Taraday added, noting that the quasi-judicial role forces councilmembers to make a decision “that is consistent with the previously adopted decision criteria and standards that are in our zoning codes.” As an example, Taraday cited the recent role of the council in reviewing the City Hearing Examiner’s decision to approve variances for playfields at the former Woodway High School — a controversial project that also involved the installation of crumb rubber infill.

“You had some very concerned citizens that were asking you to deny a particular project based upon their concerns about the infill material that was going to be used on those fields,” Taraday said. “The infill was not one of the decisions for you.” While a majority of councilmembers ended up approving that project, “many of you did so, I think, reluctantly because it didn’t feel right. You knew you were doing the right thing as a judge because it met the standards but many of you said you weren’t sure about the infill material.”

By contrast, several months later — acting as legislators — the council did approve a temporary ban on crumb rubber fields in Edmonds, the city attorney noted.

Councilmember Mike Nelson, who was an outspoken advocate of the crumb rubber ban, said he looked up the definition of quasi and the first definition that popped up was “seemingly, apparently but not really. That is fitting for the role that we are asked to play, Nelson continued. “We are asked to play a judge but we are not judges, we’re legislators. I’ve only had to go through one of these (regarding crumb rubber) but it was such a frustrating experience because I wasn’t able to be a legislator. I wasn’t able to talk to anybody, I wasn’t able to consider or review all the information I wanted to review.”

Taraday also pointed to one of the risks of having councilmembers make those type of decisions: If they are wrong, they can open the city to lawsuits from affected parties. said One alternative to having councilmembers serve in a quasi-judicial role would be to request that the city attorney appeal in court any land-use decisions that they disagree with.There was a discussion about why the council took on the quasi-judicial role in the first place, with some councilmembers stating that the goal was to save appellants’ money by appealing to the council instead of taking it to court.

Fraley-Monillas requested that Taraday provide additional background on why the change was made and when, and Johnson said that the matter would be discussed again on May 24.

In other action Tuesday night, the council agreed to move the following item to next week’s consent agenda for approval:

    • An Interlocal Agreement between the City of Edmonds and Snohomish County Fire District No. 1 regarding CPR classes
    • A Right of Way Dedication Deed on 218th Street for Select Homes, Inc.
    • A Supplemental Agreement with Reid Middleton, Inc. for the Northstream Pipe Abandonment and Culvert Rehabilitation Project
    • An Interlocal Agreement with the City of Lynnwood for specialized equipment to test air quality emissions from incinerators at the city’s wastewater treatment plant.
    • Authorization to purchase one new Caterpillar 420F2 HRC Backhoe Loader from NC Machinery.
  1. Is the City actually paying about 500k for legal advice like this? What a pathetic joke! Mr. Taraday completely misrepresents the issue of “Executive Session minutes”. First of all the City Administration, Council and he work for the citizens of this city. The Washington State Legislature and Constitution make it clear that the Citizens are the authority, not the Government.
    RCW 42.56.030
    The people of this state do NOT YIELD their SOVEREIGNTY to the agencies that 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 maintain control over the instruments that they have created. This chapter shall be liberally construed and its exemptions narrowly construed to promote this public policy and to assure that the public interest will be fully protected. In the event of conflict between the provisions of this chapter and any other act, the provisions of this chapter shall govern.
    [ 2007 c 197 § 2; 2005 c 274 § 283; 1992 c 139 § 2. Formerly RCW 42.17.251.]

    He miss-represents the attorney-client privilege as it pertains to a public entity like the City of Edmonds. His client is the city, not the individual members of the Administration and he has a duty to look out for the welfare of the city. Previous City Council enacted a resolution that there was a duty to release the minutes after the issues addressed were finished.

    Citizens have every right to expect that the City Council will respect and follow the legislative intent of Resolution #853. Once the reason for the Executive session has expired, upon request, the City’s legislative desire is to waive attorney-client privilege upon receipt of a public record request.

    Others before Lighthouse Law Group found it easy to understand the legislative intent of Resolution No. 853. For example, Page 8 of the June 5, 2007 Edmonds City Council Approved Minutes includes:

    With regard to the allegation that something occurred in Executive Session, Mr. Snyder advised once the process was concluded, all Executive Session minutes would be available to the public.

    Furthermore, the following discussion related to recording Executive Sessions and/or releasing Executive Session minutes is found in the November 27, 2007 Edmonds City Council Approved Minutes:

    Councilmember Plunkett commented his understanding was that once an executive session issue was resolved, the City made the minutes of the executive session public. He asked whether the proposed legislation would prevent the publication of the minutes for two years. City Clerk Sandy Chase answered Edmonds was unusual as they maintained minutes of executive sessions; the majority of cities did not. Currently, once an issue was resolved, the minutes become public record upon receipt of a public records request.

    This is completely in line with the Legislatures intent with the PRA. There are limited exceptions in RCW 42.56 for records, things like health records, criminal investigations, etc. Nowhere is there an explicit exception for attorney-client privilege. There is only a limited exception for “current controversies” where disclosure would interfere with the legal process. It is fully expected that all that material would be available to the people the agency represents. The citizense have every right to know if their representatives are following the law in executive session or not!!!!!

    During 2015, it was discovered that Lighthouse Law Group had not kept their Corporate Registration current with the Secretary of State and had never obtained a City of Seattle business license or paid the related City of Seattle business license taxes. Once again, are citizens to conclude that duties and laws and the Oath of Office are a joke and don’t really make a difference?

    Not only can Mr. Taraday not be trusted to follow the law, he cannot be trusted to give valid, professional legal advise. The Council should immediatly remove him!!!!!

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