Last evening, after writing my story for today’s paper about the Tacoma City Council’s actions yesterday to name eight finalists in the appointment process for two vacant city council seats, Councilman Jake Fey returned a call I’d placed to him earlier in the day.
I asked Fey about how the seven sitting council members came up with the eight finalists in the council’s executive session. But before I get to his response, some background:
After a two-hour closed meeting, the council held a brief public meeting yesterday, during which members unanimously approved eight consecutive motions, without discussion, that named eight finalists among an original pool of 44 applicants. The finalists will be brought back for public interviews with the council next week.
As I wrote about today, some experts in open government law question if the council properly followed the state’s Open Meetings Act and the prevailing case law on it. The law says that during executive sessions, councils are allowed to evaluate candidate qualifications, but they are prohibited from taking any kind of vote or otherwise coming to agreement or consensus made during such closed-door meetings. Any vote-taking needs to be done in public, according to the law.
(Ironically, the prevailing case law on the matter involved another appointment made by the Tacoma City Council — and involved one of the very same finalists named by the council yesterday. In 1995, the council appointed Chris Thompson, who also showed up on the council’s short-list yesterday, to the city’s Planning Commission. Although Thompson’s appointment to the commission was made publicly back then, the Supreme Court later ruled it was done so only after the council convened an executive session, during which council members took an informal poll to determine the preferred candidate. Another applicant for the Planning Commission appointment, Cheryl Miller, later sued the city. And ultimately, the high court ruled in her favor, setting the precedent on the issue with the 1999 decision on Miller v. Tacoma.)
Before I spoke with Fey last night, I talked with City Attorney Attorney Elizabeth Pauli and Councilman Marty Campbell, both of whom told me that no voting had taken place in yesterday’s executive session. Pauli added the council was well apprised of their legal restrictions, and did not overstep its authority. Campbell and Pauli’s comments, as well as those made earlier in the day by Mayor Marilyn Strickland and Councilman Spiro Manthou, gave some generalities about what went on behind the closed doors, but none of them really drilled down into the solid details about what actually happened to identify the eight finalists named later.
So, when Fey called, I directly asked him — how did you come up with the eight names?
“How did we come up with the eight names? Well, it’s an executive session, so I can’t talk about certain issues,” he began.
“I would describe it as we had a robust conversation about people, from each of our perspectives, about who we thought should be interviewed. I don’t believe that anybody had their single list of who they wanted to see interviewed. So, there wasn’t a consensus in that sense.”
“What we did is basically talked about who should be interviewed, and we just had a conversation about those people and whether they were likely to receive votes (for the ultimate appointment).
“Certain names kept coming up of people we thought ought to be interviewed,” Fey added. “I don’t think it was reaching a consensus, because no one had their A-list about who should be interviewed. We just had a discussion.
“And, certain names kept coming up over and over again, then (there was) talking about a group of people, but I wouldn’t necessarily describe it as we had reached consensus behind (it). I think we did a good job of trying to be open and at the same time go by the restrictions.”
I told Fey that I had described to a few open government lawyers the council’s public process after the executive session, and how the lawyers, in turn, wondered how the council could not have made some kind of agreement to come up with the eight finalists. (In today’s story I described the council’s public process like this:
After the council’s two-hour executive session disbanded Wednesday, the doors were opened to the public and the council engaged in a procedure to approve finalists. Councilman Jake Fey made eight motions – one for each finalist – stating their names and that they be brought back for public interviews. Each motion was then seconded by Councilwoman Lauren Walker, with Mayor Marilyn Strickland then asking for council discussion before taking a voice vote. Each motion passed unanimously with no discussion. Other than the eight names approved for further interviews, the council publicly considered no other names.)
To that, Fey responeded: “Well, I thought we had real good advice from our attorney. The attorney’s advice was to do the motions one by one, and to do it randomly. It wasn’t done in alphabetical order, it was scrambled.”
(Yesterday’s motions about the finalists came in this order: Chris Thompson, Phil Cowan, Bob Sheehan, Ryan Mello, Rick Talbert, Koree Baker, Patricia Lecy-Davis, David Boe.)
“We handled it the way we did because we were really trying hard to comply with the (legal) restrictions,” Fey added. “I’m not an attorney, so we were getting advice along the way. Honestly, there were times where they gave us feedback where we should not get into certain areas. So we tried to keep within our bounds of not having an agreement.”
“To me, it’s an interview process, its not choosing council members,” Fey added. “I didn’t consider it to be voting on finalists. You know, it’s supposed to be confidential. We’re dealing with real people and there are emotions involved, so we’re trying to be sensitive to that during this process.”
Today, I talked to another lawyer, Greg Overstreet. Formerly the Attorney General’s open government ombudsman (in my story today, I quoted Overstreet’s successor in that post, Tim Ford), Overstreet now is a partner in private practice for the Allied Law Group, which specializes in open government law (I also quoted his partner, Michele Earl-Hubbard, in today’s story).
I described what happened during the council’s public session yesterday to Overstreet, and also told him about Fey’s comments.
“What you’re describing to me shows that the council clearly narrowed the field of candidates, which is a `vote,’ which is prohibited,” Overstreet said.
“It seems pretty clear to me,” Overstreet added. “I ran into this same thing a number of times in the AG’s office. “Narrowing down a field of candidates is a decision, and you can’t make decisions in executive session. I have never heard any other legal explanation of this type of situation than that this is a `narrowing down’ in executive session.”
In response to Fey’s particular comments about scrambling the names of the finalists when the council entertained its motions in public session, Overstreet said: “Why would that be necessary if there hadn’t been a decision made?”
While it may be difficult to cull a field of candidates without reaching a consensus, Overstreet said, there are ways to legally do it.
“How would this operate legally? Well, how about this: Say everybody goes around a table and each one of you suggest a person. If someone says the name you were going to say, you can abstain, or say another name. And we just keep going around until all the potentially qualified candidates have been suggested, and we run out of names. That’s one way to do it. Just keep going around and around without having anyone coming to some grand consensus.”
Council members then could take all the suggested names out into public for a vote, he said.
Another way to do it? Stay out of executive session for such decisions period, he said, and simply conduct the entire winnowing process in public.
If any of the 30+ applicants who didn’t move on in the appointment process — or any other citizen, for that matter — feels that the process ran afoul of the law, Overstreet said the only recourse is to file a lawsuit.
“What can be done? Someone – and it can be anyone – could file a lawsuit and challenge the narrowing down, that a decision has been made in the executive session,” he said. “Any person can file it. It doesn’t have to be one of the unsuccessful applicants. But there is no other mechanism for having a decision about whether there was a violation in this situation.”
The difficulty with such lawsuits is that they can be costly, take time and not necessarily change any final appointment outcome. Such cases are also difficult to prove, Overstreet noted.
Although recent legislation proposed in Washington sought to require all executive sessions be audio recorded, that proposal failed. In Oregon, state law allows the media to sit in on executive sessions, as long as journalists agree not to report on what occurred behind closed doors.
But currently in Washington, there is no requirement for recording or observing such closed meetings.
“This situation illustrates precisely the need for the law (to record executive sessions),” Overstreet said. “Not only would it prove what really happened, but it would probably also deter (closed-door decisions) from happening in the first place. I believe the public would have a much better opportunity to be involved in the decision-making.”
“The difficulty in this situation is, you’re not in the room and you don’t know what really happened,” Overstreet added. “Normally, lawyers — and reporters, for that matter — want to be precise and know exactly what happened before forming an opinion. And usually, council members doing this will not really offer an explanation, but just shrug and say, `We just discussed qualifications.”
And if someone followed through with a lawsuit? The outcome “would probably look a lot like the Miller v. City of Tacoma decision,” Overstreet opined. “It’s kind of ironic that the same issue is coming up in the same city some 15 years later.”