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Applicant: Tacoma City Council appointment process “ethically flawed”

Post by Lewis Kamb / The News Tribune on Jan. 12, 2010 at 11:06 am with 8 Comments »
January 12, 2010 11:11 am

In an email sent earlier this week to fellow applicants and Tacoma City Council members,  Jim Hoard — one of the original 44 candidates vying for appointment to the two vacant council seats — criticized the council’s selection process and says it should be immediately “terminated” for the council to salvage its reputation.

Hoard, a retired Boeing senior manager and research scientist who has been active in local causes — including the effort to save the Murray Morgan Bridge, took issue with the way the council approved eight finalists to move on in the appointment process.

As we’ve reported here and here, some lawyers who specialize in open government have questioned whether the council may have violated the state’s Open Meetings Act when naming the finalists last week.  After meeting in a closed executive session, council members emerged in a public meeting to approve the eight finalists to move forward. The approvals were made without discussion and unanimously.

State law says that decision-making bodies may evaluate such candidates qualifications,  but cannot make decisions behind hind closed doors. Tacoma City Attorney Elizabeth Pauli has said the council members did not overstep its authority when approving the finalists.

The eight finalists are set to be interviewed publicly today at the council’s noon study session,  to be held in council chambers.  The interviews will be broadcast live on TV Tacoma Channel 12.  The city council is expected to make final appointments on Thursday, and have scheduled an executive session for 8 a.m. to discuss the finalists.

In his lengthy email sent on Jan. 11, Hoard wrote, among other things, a two-act play that parodies what might have gone down in the council’s executive session regarding the finalist selections.

Hoard went on to conclude:

…the process is already so ethically flawed that it cannot be redeemed and must be terminated–before the Council damages its reputation irremediably.

But should the council decide to do a do-over — and there has been no indication it will — Hoard said he wants no part of the process.

In closing, I should like to state emphatically that should the City Council start the selection process over, I most definitely do not want to be considered as an applicant for one of the vacant positions.

The full text of Hoard’s email follows is reprinted below.

Sent: Monday, January 11, 2010 6:00 PM

Subject: The Application Process and All That

Dear Fellow Applicants,

The public meeting of the City Council on January 6, which approved eight of forty-four applicants for two vacant council positions for a second round of interviews, has raised questions about how the closed-door meeting that preceded the public meeting could possibly have been conducted without egregiously violating the Open Meetings Act.  In particular, the The News Tribune editorial that appeared on January 8 expressed incredulity that the process could possibly have unfolded without the collusion of Council Members during their closed-door meeting.  And the editorial writers stated their view with no little sarcasm.  News Tribune columnist Peter Callaghan flatly asserted in his January 9 column that there is no doubt that Open Meetings Act was violated, while pointing out that a failure to follow the act typically has no unpleasant consequences for the miscreants.

Given the demands that the Open Meetings Act requires for closed sessions (no actions, no votes, not even nods or winks), one can only wonder why the City Council would even try, as part of the applicant evaluation and selection process, to deliberate as a committee of the whole.  This is especially so in light of how the then-City Council proceeded in 2005 when Council Member Kevin Phelps resigned before the end of his second term.  On that occasion, the City Council appointed a subcommittee of three members to evaluate the applications and select a candidate for the entire council to consider.  This process meets all the requirements of the Open Meetings Act, since a subcommittee that numbers less than a quorum, no matter what its recommendation, cannot bind the full council to any action, final or otherwise.  The subcommittee is, of course, itself free to evaluate applicant qualifications in depth, solicit outside opinions, take votes among themselves, and so on, as a part of their deliberations.  Indeed, the subcommittee is expected to be thorough.  And if it is, the full council, as it did in 2005, can approve the subcommittee’s choice with some assurance that its decision will meet with public approval.

Now, since the City Council did, in fact, conduct a closed-door meeting, it’s fair to ask how they might have proceeded without running afoul of the Open Meetings Act.  A playwright friend (something of an alter ego) offers the following–


An absurdist travesty in two acts

ACT 1: A conference room with conference table and chairs

ACT 2: A small auditorium with raised dais that serves as council chambers

ACT 1:

Council Member One: It’s not clear to me how we can choose the applicants for the second round of the selection process without deciding

somehow on the number of applicants we’re going to select.  The Open Meetings Act doesn’t permit us to take any actions.

Council Member Two: Well, logically we need at least three finalists in order to have a second round, and a number greater than ten would be too


Council Member Three: I agree completely.

Council Member Four: Maybe I can help.  In the Orient, eight is considered a lucky number.  Perhaps eight is our lucky number, too, if you get my


Council Member Five [excitedly]: By golly, I do get your drift!

Council Member Six [excitedly]: I get your drift, too!

[All the council members now get the drift, and there are high fives and broad smiles all around the conference table.]

Council Member Seven: I have a question.  Is ‘getting the drift’ allowed?  Some people might think we reached a consensus here.

Council Member One: Not at all! When you ‘get the drift’, you’re merely understanding a metaphor.  That seems to me quite a different thing

than reaching a consensus, although I’m unable to explain what the difference actually is.

Council Member Two: I think I see the difference.  When you ‘get the drift’ you understand an expression that is obviously a metaphor.  When you

‘reach’ a consensus, while there’s no physical reaching to be sure, the reaching metaphor is so common, that it goes by without any notice at

all.  That’s why we can’t reach any conclusions or reach a consensus.

Council Member Four: That captures the distinction pretty well, I believe.  So to stay within the confines of the Open Meeting Act, we can ‘drift’

all we want, but we can’t ‘reach’ at all.

Council Member One: Well put!  Now, I think it’s time we moved ahead to consider the applicants.  I’d like to suggest that Applicant A should be

eliminated from further consideration.  Just thinking of Applicant A causes me to roll my eyes.  [Rolls eyes.]

Council Member Three: I have the same reaction.  [Rolls eyes.]

[All the other council members now get the drift and roll there eyes.  There are high fives all around.]

Council Member Six: I’m a bit troubled.  Isn’t rolling the eyes a lot like winking?

Council Member One: The similarity is entirely superficial .  Winking is a conscious, reflective act.  And it’s not allowed.  Rolling the eyes is, in my

considered opinion, nothing more than a reflex action.  Sort of like when the doctor hits your knee with a rubber mallet.  Only without the


Council Member Seven: I get your drift, so to speak, and I’m glad we see eye-to-eye on this.  [Stops and reflects.  Then says laughingly -]  Perhaps that last metaphor should be struck.

[Broad grins all around the room.]

Council Member Two: I’d like to include Applicant B in our list for round two.  In fact, I’m all pumped up about Applicant B.

[Pumps fists in the air.]

Council Member One: Was that a reflex action, Council Member Two?

Council Member Two: Yes, it was.

Council Member One: Then, I’m pleased to say that I’m also pumped up about Applicant B.  [Pumps fists in the air.]

[All the council members punch their fists in the air.]

Council Member Four: What should we do about Applicant C?

Council Member Five: My impulse is to roll my eyes.

Council Member Six: But I’m rather inclined to punch my fists.

Council Member Two: I’m afraid we’re about to drift in different directions here, if you get my drift.

[A few council members nod their heads, but then think better of it and stop nodding, putting their hands over their mouths in


Council Member One: I think we should set aside the case for Applicant C for now and proceed to Applicant D.

Council Member Three: Before considering Applicant D, I’d like to say that it’s become clear to me, and I’m sure to the rest of you as well, what a

big help paying attention to reflex actions is to our entire process.  It transforms mental telepathy into child’s play, so to speak.  Before

we began the meeting, I was dreadfully afraid that misdirection and mindreading weren’t my strong suits, even though I’m generally able

to grasp metaphors quite handily.  [Makes a grasping motion to reinforce the metaphor, then realizes it's unnecessary and slowly

lowers the hand and looks at it curiously.]   Sorry about that.

Council Member Seven: Let me interrupt here to say that I’m concerned that we’re considering the applicants in alphabetical order: A, B, C, D,

and so on.  Won’t that raise questions when we present our list in public session?

Council Member One: The City Attorney assures us that if we randomize the order when we’re through, we’ll have no problem.

Council Member Two: Can we really cover our tracks that easily?

Council Member Three: That’s a dangerous metaphor you just used.  If anyone asks, let’s just say simply that we took the City Attorney’s advice

in the matter and leave it at that.

Council Member Seven: I have another process question before we proceed.  How are we going to decide how to present the list of applicants

in the public session?  According to the Open Meetings Act, we can’t take any actions.

Council Member Four: That does present something of a problem.

Council Member Five: When the time comes, I’ll suggest that one of us makes the motions and another of us seconds them.  That’s just a

suggestion, not a motion of any kind, of course.

Council Member Six: We can take up your suggestion toward the end of our closed meeting.  By then we’ll be very adept both at getting the drift

of things and at taking reflex actions into account.

[All the council members smile broadly.  None of them winks, nods a head, rolls the eyes, or pumps a fist.]

Council Member Two: Will we have a chance to rehearse?

Council Member Seven: I really hope the playwright can accommodate that.  It would surely make Act 2 go much more smoothly.

Council Member Three: What fun!  I’ve always liked a play within a play.

Council Member Four: I’m afraid, though, that Act 2 may appear to be nothing more than Kabuki theater.

Council Member Five: That’s a risk we have to run.

Council Member One: I agree. [Pauses pregnantly.  Then says brightly-]  Can we consider Applicant D now?

. . .

We can’t know how Act 1 really unfolded, of course, but Act 2 did have a public performance.  And it was, by all accounts, amazingly well- and tightly- scripted.

While the City Council’s closed-door meeting raises serious legal issues, as Peter Callaghan has noted, the Council’s actions also prompt serious ethical questions.  These are to my mind are just as salient as the legal issues.

Now to pass an ethics test, a thought or action needs to meet a simple criterion.  It’s this: Would the thought or action meet with the approval of an Impartial Spectator?*  In this case, the answer is clearly no.  We have, in fact, no idea at all concerning the basis by which the eight names were selected, since we know nothing about the process that led to their selection.  — Save that the meeting lasted two hours, and that, according to the participants, while discussions were held, no decisions were reached.  We don’t even know why the number of applicants selected was eight.  Unless we ascribe the result to what might be termed a Miracle of Mind Reading, we are stuck with a irresolvable conundrum.  This is what appears to have left the News Tribune editorial writers so dumbfounded.

A number of Impartial Spectators are taking note of the Councils goings on concerning the applicant selection process.  One of them, James Bush, has written a letter that appeared in today’s (Jan. 11) News Tribune.  He urges the Council to “backtrack, admit its mistake”, and start over.  Although the News Tribune editorial suggested that the City Council “has another chance to demonstrate its commitment to truly open government next week when it makes its final picks”, I agree with Bush that the process is already so ethically flawed that it cannot be redeemed and must be terminated–before the Council damages its reputation irremediably.  If the City Council does reverse course and start over, I highly recommend that it use the process followed in 2005.  That process was at once legal, ethical, efficacious, and effective.

If the Council does reverse course, it leaves the eight applicants who were selected in an awkward position.  They can take comfort in the fact, though, that every Impartial Spectator concludes that it’s unethical to benefit from an unethical act.  That’s why beneficiaries of nepotism, cronyism, political favors and the like receive no praise at all, not even faint praise.  (It is, of course, ethical to benefit from chance.  But we are assured here that the City Council did not draw eight names out of a hat.  That would have been an ethical, even if not a particularly wise, course of action.)

In closing, I should like to state emphatically that should the City Council start the selection process over, I most definitely do not want to be considered as an applicant for one of the vacant positions.

Jim Hoard

(*Didactic footnote: The Impartial Spectator was introduced into moral philosophy by Adam Smith in his The Theory of Moral Sentiments, first published in 1759.  Smith’s Impartial Spectator just asks what an impartial, rational, and fair-minded spectator would think of any thought or action. The considered answer serves to determine if the thought or action was ethical or unethical.  Smith’s treatise has been in print for the entire past two and a half centuries, to the best of my knowledge. Indeed, yet another new edition appeared in 2009; and Amartya Sen invokes the Impartial Spectator many times in his important 2009 work The Idea of Justice.)

Leave a comment Comments → 8
  1. You have a new Mayor who is ethically flawed !

    And you expected what ?

  2. headedsouth says:

    The City Council should start over considering how flawed the “process” has been for citizens of Tacoma to respect not only the current councilmembers but the ones to be chosen to fill the vacancies. Her is my prediction – Rick Talbert and Ryan Mellow. Rick becuase he has the votes and Ryan because of demographics.

  3. S_Emerson says:

    Why do I continue to expect elected (and appointed) officials to know the laws, and follow them? They have a responsibility to, don’t they?

  4. jiminycricket says:

    If the “process is ethically flawed,” does this mean that those who sit on the City Council are ethically flawed, or just ignorant of whatever is considered to be “the appropriate process?’

  5. tacomajoe says:

    Broadcast the play on public access instead of the charade the City Council is planning.

  6. the3rdpigshouse says:

    The Tacoma City Council is only going to become more comical as Strickland begins her on-the-job management training!!!

  7. When the process was first announced, the first thing I asked was,”What’s with the closed door sessions?” Don’t these guys know better by now? There can be NO decisions made outside of view of the public. PERIOD. Hell, I’m just Joe Blow Citizen and even I know THAT.
    Who is going to be the brave soul or group of souls that have the cojones to sue them and make them behave?

  8. Secret, undocumented, closed door decision making followed by a pathetic public spectacle and a show of solid pack mentality among the council. This council will continue giving tax breaks and advantages to out of town developers while ignoring needs for local and sustainable development. What’s in it for the council? Climbing up the county and the state ladder of buddy politics the Julie Anderson way.

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