With two councilmembers absent and two more choosing to leave after they raised concerns about the legality of the gathering, the Edmonds City Council was forced to end its Monday night special meeting, which had been called to consider amendments to the streateries ordinance approved last week.
As a result, the council’s Dec. 16 decision to extend the streateries permitting until April 30, 2022 stands, as does a $4,000 lump-sum fee to be assessed to any of the 17 streatery operators who choose to continue operating. Those who do not are required to remove their structures by Jan. 15, 2022.
The meeting began with five councilmembers, after Diane Buckshnis and Kristiana Johnson said previous commitments prevented them from attending. (Both Buckshnis and K. Johnson had said they were available Tuesday — the routine council meeting night — but Council President Susan Paine she chose Monday based on a few factors. Among them, scheduling requirements for publishing a meeting notice in the Everett Herald, and to address more quickly the concerns of affected streatery operators, who worried they would need to begin fundraising efforts to afford the $4,000 charge.)
Councilmember Will Chen had suggested taking another look at the $4,000 fee, which he had originally proposed. But on Monday, he joined Olson in expressing concerns about previous statements being circulated — including some on social media — that the council meeting was called by three councilmembers, when four might be required under state law. That assertion is open to interpretation, but it was a scenario suggested during public comments by Edmonds resident Finis Tupper, who has filed lawsuits against the city in the past for not following proper procedures.
Referring to Tupper’s comment, Olson said she was going to excuse herself from the meeting. “I’m not comfortable with the grounds I’m on, and I’m not going to participate,” Olson said. In a later email to My Edmonds News Monday night, Olson stated that “I am already a subject of one of Mr Tupper’s lawsuits. From what I know about the facts of this situation, (this is) not clean enough to feel comfortable.”
At issue was the council agenda memo for Monday night’s meeting, which stated there were “three councilmembers who would like to amend the recently adopted ordinance extending streateries.” The three councilmembers weren’t named in the memo, and both Chen and Olson said that could leave it open to interpretation, legally, whether three or four councilmembers were sponsoring the measure.
Tupper’s claim points to the state’s Open Public Meeting Act, enacted in 1971 by the state Legislature, that specifically states “a special meeting maybe called at any time by the presiding officer of the governing body of a public agency or by a majority of the members of the governing body.” A majority, Tupper said, means four councilmembers, rather than the three stated in the Edmonds City Council special meeting agenda for Dec. 20.
The OPMA, Tupper added, subjects members of a governing body “to personal liability in the form of a civil penalty of $500 for the first violation and $1,000 for the any subsequent violation.”
Following Olson’s departure, Chen noted that after hearing Tupper’s statement and the fact that three councilmembers were gone, “I don’t think I’m comfortable continuing with this meeting, with half of the councilmembers unavailable.”
Paine then asked City Attorney Jeff Taraday to weigh in on whether Monday’s gathering was illegal. “In my opinion it is not (illegal),” Taraday said, “but I am not sure that entirely answers Mr. Chen’s concern,” adding that Chen’s statement “goes beyond the meeting’s legality to the number of councilmembers attending.”
“My understanding from having conferred with the council president over the weekend is that we had four councilmembers calling for this meeting,” Taraday said. “I didn’t independently confirm that but that’s my understanding of the facts.” That means, Taraday said, that the council isn’t relying on the possibility of violating the OPMA’s requirement of a council majority to call a meeting.
In addition, Taraday asked Paine to state for the record which four councilmembers requested the meeting, to which Paine replied she had heard first from Councilmembers Chen and Laura Johnson, “and Councilmember Fraley-Monillas also expressed interest.” Paine said that she was also interested in having the meeting. Paine is listed on the meeting agenda as the sponsor of the proposed amendments, which would have reduced the fee from $4,000 to $2,000, allowed the streateries operators to pay in installements, and extended their permitting a month, until May 31, 2022. However, the names of the supporting councilmembers are not listed.
“We have an obligation as citizens to work this through tonight,” Fraley-Monillas said. “$4,000 is a lot of money.”
Fraley-Monillas also noted that both Buckshnis and Kristiana Johnson had not attended meetings last month when the council was discussing the budget — referring to that non-attendance as a boycott — and also charged that Olson’s decision “was a setup to leave the council meeting, to try to make it less and less.”
Olson disputed that, stating in an email after Monday’s meeting that “I did not come to this meeting planning to leave it.”
Olson also said in her separate email that “Council President Paine told me expressly when she gave me the heads up about the special meeting that she did not call for the meeting (it was already scheduled). She told me there were three councilmembers and she was not one of them.”
Chen told fellow councilmembers Monday night that he was supportive of revisiting the Dec. 16 ordinance, but he pointed to recent communication on Twitter “saying there were three councilmembers willing to reconsider the ordinance. It was three to begin with and then became four, so I think that’s tricky. So because of that reasoning, and (that) half of the councilmembers are not participating, so I’m not comfortable continuing even though I was one of the persons to initiate it,” Chen added.
“Twitter, Facebook, you really shouldn’t listen to it, that’s not factual a lot of the time,” Fraley-Monillas replied. She then made a motion that the council charge the streateries operators $1,000 for five months, through May 31, and that was seconded by Paine.
Chen then reiterated his statement that he wasn’t comfortable moving head with the vote.
Fraley-Monillas replied that it was Chen’s right to vote against her motion, but added that “I think we’ve set this all up properly and everybody’s anxious to do it, and I would hate to see this moving forward that a few councilmembers cannot go to a meeting and stop all the city business.”
Councilmember Laura Johnson said she was the one who distributed the tweet that Chen mentioned, adding that it was copied directly from the agenda item. “I apologize if I caused confusion with that,” Johnson said. “It is the simplest way for me to communicate what we are going to be talking about without putting my own spin on it.” She also said it was clear from how the agenda memo was written, it includes Paine as well as three others.
Johnson also added it doesn’t make sense to make it more difficult for streateries to operate, “especially now…with an extremely transmissable variant spreading very fast. So if we leave here today we are missing that opportunity to allow all of our streateries to stay because right now the $4,000 is only doable for a few. By not staying today and not making changes to this, we are going to be saying that we do not think protecting public health through the streateries and keeping them afloat is a priority to us. We do not know what’s coming.”
“Let’s face it,” Chen replied, “the streatery is not COVID, it’s not (a) hospital, the streatery is just a place for people to eat. Yes, they do help, but they are not like the vaccines.”
Fraley-Monillas then repeated her motion to lower the fee and extend the timeline, and Chen reiterated that he wasn’t comfortable voting. Then Councilmember Laura Johnson asked Chen why he would choose “to go off a tweet…that was taken from an official document that led to this meeting.”
Chen replied he believes that “Twitter, Facebok, all kinds of social media, that’s like written documents, it’s evidence. I caution our council, it’s not worth the risk. We have our fair share of lawsuits already.”
Paine then asked for a vote on Fraley-Monillas’ motion, but Chen again stated he wasn’t not comfortable proceeding, adding he was going to leave the meeting.
The city attorney said there was no point in continuing if that was the case. After that, the council voted to adjourn, but that motion failed. Chen then left the meeting, ending the matter.
Asked whether she would attempt to bring the streateries matter back again before the council, Paine said she would not. “I think this is a very disappointing outcome for our downtown,” Paine added.
— By Teresa Wippel