Closed door discussions issue not yet put to rest

In recent weeks there have been many questions regarding possible open public meetings act violations by the city of Sunnyside.

The questions came to the forefront when Councilwoman Theresa Hancock shared information from an executive session that took place about two weeks ago. She shared that information with the city's attorneys, the city manager, the city's insurance carrier and the local media.

Toby Nixon of the Washington Coalition of Open Government and Tim Ford of the Washington State Attorney General's Office both weighed in on the issue.

Nixon said Hancock was correct to complain about the dealings behind closed doors when he learned the details of what transpired during the executive session.

He said the discussions that took place during the closed meeting "...did not fall under (RCW) 42.30.110(1)(g), as cited by Councilman Jim Restucci at the Saturday, Feb. 25, meeting.

"However, I can think of a couple of valid ways this information could have been shared with council privately," said Nixon.

He said the city council could have consulted with the city attorney before discussing such matters as whether or not bargaining units might hold a no-confidence vote regarding City Manager Mark Gervasi, as occurred on Feb. 25 in executive session.

Consulting the city attorney regarding matters that may or may not result in a lawsuit is always advisable, according to Nixon.

He said none of the other things allegedly discussed on Feb. 25 would have been allowed under executive session topics.

Those other things mentioned involved discussions about employees without forewarning, which didn't give those employees the option to have matters discussed in open session.

The executive session was called when council members began the discussion regarding whether or not Gervasi could continue to serve the city on an interim basis after the date of his retirement.

Mayor Mike Farmer said Councilman Jason Raines had some concerns regarding Gervasi's performance and ability to perform his duties.

"Jason expressed some of his concerns were in regards to Gervasi's supervision of other employees," said Farmer.

He said that discussion led to the names of specific employees being brought out during the executive session.

"It was totally in the scope of executive session," said Farmer.

He said an evaluation of Gervasi's performance would have been a different matter and notification regarding the matter would have been required by law.

Hancock said there is no justification for violating the Open Public Meetings Act. She views the scope of the discussion as such a violation.

In a story published by the Daily Sun News on Friday, March 2, 2012, Councilman Don Vlieger admitted the discussions may have fallen "...5 percent outside of the intended scope, but the mayor always got us right back on track."

That, said Hancock, "...opens it up for abuse."

Farmer said, "Theresa had every right to bring it out...however, she had no right to take it to the news. She should have brought it to me first, the city manager and the prosecuting attorney."

He said her actions were a direct violation of law and Hancock is subject to sanctions.

Farmer said the council could make a motion to exclude Hancock from future executive session meetings or it could impose a $500 fine.

That's not so, according to Nixon, who said, "There's nothing in state law that requires (Hancock) to go to the mayor, the city attorney or the county prosecutor with a complaint about Open Public Meetings Act abuse."

He said it's "...probably a good idea" to go to the mayor or city attorney, but it is not lawfully required.

"There's nothing in state law that the county prosecutor could do anyway...violations of the Open Public Meetings Act by a city council are not prosecuted by the county prosecutor," Nixon continued.

The only action that can possibly be taken, he said, is a lawsuit filed against the individual or council members in superior court.

Ford concurred, stating Hancock also cannot be excluded from executive session meetings because she is an elected official. Excluding any elected official, he said, is a violation of the will of the electorate.

He said, "Not everything discussed in executive session is subject to closed executive meetings."

As a result, sanctioning Hancock for her actions could be a direct violation of her first amendment rights, according to Ford.

Hancock said, "I have been on the council six years and would never think of placing the city in a situation of liability, revealing executive meeting discussions."

She said she only revealed the discussions from the Feb. 25 meeting because she believes it is her responsibility to look out for the best interest of the public whom she serves.

"Violations of the Open Public Meetings Act is crossing the line of the public's trust," said Hancock.

She said she is also concerned regarding the notion that council may or may not exclude her from executive session meetings. She said a vote in favor of such action may lead to further censures on others.

"It provides specific council members the ability to turn executive session meetings into meetings exclusive to only those who are like-minded," said Hancock.

She said there are many personnel issues awaiting council discussions.

"My hope is that the council will be forthcoming and honest with its approach without violating the Open Public Meetings Act," said Hancock.

The city council earlier this month learned of another instance that caused eyebrows to raise.

A public safety subcommittee meeting was held without the knowledge of some of the council members. That concerns Hancock because there was no public notification for what she believes is considered a public meeting.

"The city manager didn't even receive notification," she said, stating she was surprised to learn the meeting had taken place when at a city council meeting.

Three city council members serve on each of the council's subcommittees. As a result, the meetings are typically open to the public.

Farmer said, "I don't believe public notification is necessary because there is no quorum."

He said the city clerk, however, should have notified all interested parties of the date, location and time of the meeting.

"I don't know why it didn't happen," said Farmer.

With all these questions in play, the Sunnyside City Council members are busy trying to remedy any future miscommunications to prevent the perception of violating the Open Public Meetings Act.

Hancock said the council has also been provided a copy of the Open Public Meetings Act for review.


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