In civil suit, Edmonds resident alleges city council violated law by not streaming May 15 special meeting

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 

 

 

 

 

7 Replies to “In civil suit, Edmonds resident alleges city council violated law by not streaming May 15 special meeting”

  1. Teresa: I hope you will publish the background of this guy. I Googled him — all that energy spent wasting tax dollars — wonder if he ever considered helping others instead. Maybe teaching an illiterate adult to read or write? Keep up your great journalism work. Please.
    Nancy Crim

    Ignored

    1. Why so quick to judge? Are you aware that City Officials sometimes tell citizens they need to go to court?

      Finis Tupper is my neighbor and friend. He has given me massive hours of his time, teaching me much and advising me. He has never asked me for anything in return. I don’t deserve such a great neighbor.

      I know him very well and I know at his core he has a strong desire for better City Government. A lawsuit like this is one tool citizens can use to try and cause better government. Legislators have adopted policies calling for punitive damages as a tool that citizens can use to try and motivate people to make improvements.

      As one who also has a strong desire for better City government, I can tell you that it is very difficult to help bring about changes to our City government. I have been fighting for a Code Rewrite for many years and I can’t even get City Officials to provide citizens a status update as to where our Code Rewrite is at.

      Government works best when the public gets involved and when people seek improvements. I am thankful Finis cares as deeply as he does.

      Ignored

      1. Ken, since you know him so well, are you able to tell us out of which – um, back pocket – Mr. Tupper pulled the “$500 from each ‘member of the governing body’ present during the May 15 meeting” as damages?

        Far as I can tell he has suffered “zero” personal loss/damages, and the high threshold for punitive damages (gross negligence/intent to injure) just isn’t met here (unless the argument here is that not knowing how to operate a “Zoom” conference properly equates with gross negligence, in which case there are lots of people out there that should be suing me …).

        Perhaps Mr. Tupper should seek to certify a class action suit instead, as whatever loss he suffered was also suffered by every other member of the community. That way we can all join in on the approximately one dollar that the court might collectively award in “damages” for this litigious nonsense.

        Ignored

  2. Hi Paul. I appreciate your interest in my comments. My belief is that our State Lawmakers adopted these policies and penalty amounts to help prevent public agencies from deciding what is good for the people to know and what is not good for them to know. I don’t think the penalty amounts are meant to compensate the Plaintiff.

    Also, nobody will need to pay any penalty amount if a Judge rules in favor of the Defendant.

    The only avenue provided by the Open Public Meetings Act to enforce its provisions is by an action in Superior Court. If you have ideas on how to better enforce the provisions of the Open Public Meetings Act, I encourage you to present such ideas to your State Representatives. Maybe they will choose to pursue legislation expanding the ways the provisions of the Open Public Meetings can be enforced.

    Ignored

    1. Hi Ken.

      I don’t think that we need to do anything, really. This is a very small tempest, in an even tinier teapot. The council mucked up the use of a platform (Zoom) that was utilized by them in response to a circumstance that is a peculiar one (distancing as result of the COVID-19 pandemic), and which error was apparently corrected the next time that council used it (May 26, 2020). Mr. Taraday is correct when he stated that it is an issue that has been addressed and that will probably never again arise. Furthermore, it really appears that the participating council members themselves (the ones from whom he wants $500.00 in damages, each) had no role in setting up the meeting’s technology, did not apparently know of the error, and obviously carried no ill will or wrongful intent through the course of that meeting. Nobody is going to get punitive damages out of that. Finally the fact that Mr. Tupper is not challenging the legitimacy of the Executive Meeting itself really shows this to be primarily an argument of form over substance.

      We are all in particularly challenging times here and people are responding as best they can, our city council included – there is no rule book for much of this, and we need to pull our heads our of our um, back pockets and recognize that.

      A mistake was made, somebody missed it, a fix was had, it won’t happen again, nobody was injured, and life goes on. This is not the stuff of lawsuits.

      Last thing, please say “hi” to your friend for me, because from what you described he sounds like he is a really nice guy!

      Ignored

      1. I would agree this is quite a minor matter, but on the other hand I’ve learned that if we “sweat the small stuff” like this, bigger problems are less likely to develop going forward. Given the magnitude of the offense, maybe the city pays a fine of $1 and says “lesson learned.”

        Ignored

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