The Montesano City Council backed away from a scheduled executive session last week after a councilman warned it could be illegal.

The city council had been poised to go into executive session under protection of an open meeting law exemption that allows for the council to privately discuss job applicant qualifications or review the performance of a public employee.

While the council can recess into executive session to discuss performance or qualifications, matters relating to salary must be discussed in public, as that is a discussion regarding the use of public funds.

Mayor Vini Samuel had asked for the executive session in order to discuss a potential hire for a position not advertised. That discussion would have included a salary-range discussion.

Part of Samuel’s rationale for the executive session is to keep the individual’s name private. That individual (not named during the council meeting) is currently employed elsewhere.

“I would like the council to look at one specific individual and approve a salary spread for that individual,” Samuel said.

Samuel said a position would be created that would include the duties of public works director and community development director, replacing both retired community development director Mike Wincewicz and outgoing public works director Rocky Howard (whose resignation is pending until May). The position does not exist and has no official job description. The position also has not been advertised.

The mayor said it’s not necessary for the city to advertise a non-union position.

Councilman Dan Wood argued that the individual was not an applicant because no resume or formal physical application had been submitted for the would-be position.

Further, any discussions about a potential salary range would be a violation of the Open Public Meetings Act.

“I believe this is patently illegal and I will not participate in this executive session,” Wood said. “We are all on notice that this is a violation of the Open Public Meetings Act.”

Mayor Samuel said the individual had verbally applied for the position and she considered that individual a formal applicant.

City attorney Chris Coker said the council should not discuss salary during the executive session. Beyond that, he noted that the definition of applicant was broad.

Wood said he would not participate in the executive session.

Councilwoman Nikki Hutchinson-King said she would follow the direction of the city attorney.

When pressed by Councilman Ian Cope, Coker said he could not “guarantee” that it wouldn’t be a violation of the Open Public Meetings Act.

Wood and Coker both pointed out that any fines for a violation would be personally paid by each council member who participates in the executive session. Hutchinson-King then also declined to participate.

“I’m going to hang out right here then,” she said.

Cope, too, said he would decline participation.

“I err on the side of caution with this sort of thing, so if we can’t get a 100 percent guarantee that what we’re doing is legal, then my inclination is to stay,” Cope said.

The executive session was not held.

Samuel said she would make her own considerations regarding the individual and the potential position.

“I’m going to write the job description as I see fit,” Samuel said. “The public works director position was attempted to include what Mike Wincewicz used to do as well, but the qualifications of a public works director, as was previously done, is insufficient for the complete (job). Regardless of this applicant or non-applicant … the scope of the job is going to be a little bit wider because we need to include things that Wincewicz used to do and no one in the city does.”

Councilman Anthony Chung was absent from the meeting. He was excused by the council.