An Edmonds resident has filed a lawsuit in Snohomish County Superior Court alleging that the Edmonds City Council violated the state’s Open Public Meetings Act “for not ensuring” that a May 15 remote special council meeting was available for public viewing.
In his civil suit filed May 18, Finis Tupper cited the city’s failure to provide online live streaming of the council’s May 15 special meeting, which was an executive session regarding pending or potential litigation.
Tupper said he attempted the watch the meeting, which was publicized in advance on the city’s website, but only found a statement noting the meeting would begin shortly. Later that afternoon, Tupper said, he asked Edmonds City Clerk Scott Passey for a copy of the meeting video but was told the meeting had not been recorded.
Tupper said he isn’t challenging the executive session itself, which the council can legally conduct in private to discuss matters such as city personnel or litigation. Rather, Tupper pointed to his inability to watch online live streaming that showed where the meeting was called to order, a roll call, and announcement of the executive session’s purpose, estimated duration, whether any action would be required as a result, and the meeting adjournment.
State law requires that these statements be made publicly during the meeting, he added.
The city has been streaming its meetings via Zoom since March 22, to comply with Gov. Jay Inslee’s proclamation — related to the COVID-19 outbreak — that temporarily prohibits public agencies from holding in-person meetings. The proclamation requires, however, that the public has the option of attending these remote meetings via telephone, at a minimum, or through other means of remote access. To comply, the city has been streaming all of its council meetings via the city website, and has also made them available for viewing both live and via rebroadcast on cable television channels 21 and 39.
Tucker is seeking civil damages of $500 from each “member of the governing body” present during the May 15 meeting — which includes Council President Adrienne Fraley-Monillas and Councilmembers Diane Buckshnis, Luke Distelhorst, Kristiana Johnson, Laura Johnson, Vivian Olson and Susan Paine — stating they had ‘knowledge of the fact” that the meeting wasn’t being recorded and so violated state law.
In the city’s response filed June 10, City Attorney Jeff Taraday admitted that both Tupper and the public were not able to watch the call to order, roll call and other announcements required by state law, “all of which were supposed to occur in public view.”
According to the response, while the city had been broadcasting its meetings remotely since March 22, the May 15 meeting marked the first time that the city council met in executive session using the Zoom platform.
When council meetings are held in the council chambers, the city “has a well-established routine” for convening in executive session, which includes the mayor reading a script — prepared by the city clerk — before councilmembers adjourn to executive session in the nearby jury meeting room. But “as of May 15, 2020, the city had not yet given sufficient consideration as to how it could replicate virtually, the movement of council from a virtual publicly viewed meeting (analogous to council chambers) to a virtual private executive session (analogous to the jury meeting room),” Taraday said.
In the city’s response, Taraday cited the “subtleties” of Zoom, which “render the visual distinction between a Zoom meeting open to the public and a Zoom meeting in executive session so small as to be easily overlooked.”
Councilmembers weren’t given two separate Zoom links — one for the public portion of the meeting and one for the private’s portion — he added, but simply clicked on one link for the entire meeting. He also noted that the councilmembers named in the lawsuit were not involved “in the making of meeting arrangements” for the May 15 meeting, including technological arrangements.
When the council held its second executive session, on May 26, the city had figured out how to ensure the council could move “from a public session to a private session and back to a public session,” Taraday said in the city’s response. “The May 15, 2020 special meeting presented unique circumstances that are highly unlikely to be repeated,” he said.
The city did provide the information on the May 15 meeting start and end time, as well as the meeting’s stated purpose, in adopted meeting minutes, Taraday noted in the city’s response.
Tupper said in an email that he decided to sue the city because “council decisions should be made as a body in a public meeting. Not in closed executive sessions or by emails only sent among themselves. The public has the right to know when, why and how decisions are being made for them and by our elected representatives, especially council meeting procedures affecting their participation,” he added.
— By Teresa Wippel