An ambiguous motion from the Grays Harbor County commissioners authorizing the county to enter into some kind of legal proceeding on Monday lacks the details necessary to comply with the state’s Open Public Meeting Act, public access experts say.
In fact, state public meeting laws may make the action “null and void” and very well could jeopardize whatever the Grays Harbor County commissioners are trying to accomplish.
The county commissioners conducted a 30-minute executive session Monday morning. After, they emerged and approved the following motion: “Counsel is authorized to institute proceedings relating to certain public officers.”
The commissioners declined to give any further details, providing the following statement: “There will be no public comment on the topic due to confidentiality requirements by law.”
The commissioners had been in executive session with Special Deputy Prosecutor Tom Fitzpatrick discussing the lawsuit the Superior Court judges had filed against the county commissioners relating mainly to budget cuts and courthouse security.
“The motion should have identified the subject of the proceedings,” according to Deputy Attorney General Tim Ford, who is the state’s open government ombudsman.
Because the commissioners cannot take action in executive session, they had to emerge to the public meeting and take a vote in public. Each commissioner knew the context of what they were voting on, but the public does not.
“Motions should have sufficient detail to inform the public about the subject of the vote,” Ford said. “A secret vote isn’t just a vote in a closed meeting but may include public votes where the governing body refuses to identify how members voted or for whom the members are voting about.”
Ford cited the Revised Code of Washington 42.30.060, part of the state’s Open Public Meeting Act, which states, “Any vote taken in violation of this subsection shall be null and void, and shall be considered an action under this chapter.”
Special Deputy Prosecutor Tom Fitzpatrick, who represents the commissioners in their defense of the judges’ lawsuit, said he directed the commissioners to make the motion.
Asked to cite the specific “confidentiality requirements by law” that prohibit the commissioners from making more public statements or identifying the purpose of the motion, Fitzpatrick said, “If I did, then you would know what the action is. I would love to comment but I cannot.”
Besides a private practice with former State Supeme Court Justice Phil Talmadge, Fitzpatrick is an adjunct professor at Seattle University School of Law, focused on professional responsibility, municipal law, land use and litigation. Fitzpatrick says he’s intimately familiar with open government laws and the commissioners did nothing wrong.
Toby Nixon, the president of the Washington Coalition of Open Government, called the action by the Grays Harbor County commissioners “ludicrous” and “absolutely astounding.”
In 2005, the state Auditor’s Office issued a finding against the City of Ocean Shores for violating the Open Public Meetings Act for action the council took in 2003 when the council emerged from executive session and made an ambiguous motion to hire a city manager candidate the city identified as candidate “number 6” instead of by name.
Nixon noted the Ocean Shores case is frequently used by open government experts, including State Auditor Brian Sonntag, in teaching that local governments should avoid ambiguous motions and be open and transparent.
“From a principle’s perspective, the people of the county absolutely have the right to know what the county commissioners are doing,” Nixon said. “It’s kind of disturbing that they can come out and have a sham vote and nobody in the public or media know what exactly it is they really voted on. They might argue it’s not a secret ballot because everyone can see how everybody’s voted on it, but what were the accusations made? What law was potentially violated? What did they file in court? To say this is all confidential doesn’t fly.”
Nixon says a James Madison quote is still relevant today: “Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.”