The city’s approved settlement with Clear Channel Outdoor over a federal lawsuit about billboards came up quickly and quietly, added as a last minute agenda item to last week’s council meeting a few hours after the council met to discuss the issue in a closed-door executive session.
(The settlement, which we wrote about here and here, essentially would allow Clear Channel to build as many as 36 new digital billboards in the city if it removes up to 240 current billboards and relinquishes up to 169 permits it now holds to build new ones. City officials have said if maxed out, the deal would remove as much as 85 percent of current billboards. The settlement also means Clear Channel would drop its federal lawsuit alleging constitutional violations against the city’s 1997 ordinance that called for large billboards to be removed by 2007.)
At last week’s council meeting, after Mayor Marilyn Strickland read a lengthy statement explaining details of the settlement, the council voted unanimously — and without discussion — to approve the deal’s terms.
Ever since, several council members have been reluctant to speak with me about the settlement — either by not returning my calls, offering no comment for the record, or, speaking very carefully and/or generally about the issue (In general, some members have told me the settlement is a good deal that will take most billboards off the street and largely protect the residential atmosphere of most neighborhoods, plus end an ongoing and costly lawsuit).
The council’s handling of the issue is reminiscent of its process to name finalists for appointment to two open council seats earlier this year. After a closed-door meeting, the council emerged from an executive session then, and, without discussion, unanimously approved eight finalists from more than 40 applicants to advance in the appointment process. The News Tribune ultimately filed a lawsuit over the council’s actions then, winning a first-of-its-kind court ruling that ordered the council to audio record any further closed sessions regarding the appointment. On Sunday, Peter Callaghan opined about the similarities of the council’s actions then with last week’s billboard settlement.
Tim Ford, open government ombudsman for the state Attorney General’s Office, told me last week he won’t go so far as to say whether the council’s executive session actions this time around were or weren’t legal without knowing more about what went on behind closed doors. But, the council’s in-public actions certainly raise questions, he said.
“Whenever there’s some lack of (public) discussion, I always have a question as to why,” Ford said. “I think where there’s an opportunity where they could hold some discussion, then they should.”
Even though the issue at hand involved a legal settlement, its terms obviously have bearing on public policy, Ford agreed. And, the fact that the city made copies of the settlement agreement publicly available at the meeting indicates they probably could have had a broader public discussion, Ford said.
“With regard to litigation, it can get really tricky,” Ford said. “If you’re going to discuss a settlement, the terms of the settlement could be compromised due to public discussion.”
“But, if they gave (the public) a copy (of the settlement agreement) and it’s not privileged or confidential, I suppose they could’ve had a discussion that would have been helpful to the public,” Ford added.
Greg Overstreet, an expert on state open government law who preceded Ford as the AG’s ombudsman, said he can’t say based on what’s publicly known if the city council strictly adhered to the state’s Open Public Meetings Act. If they did not come to some sort of agreement behind closed doors on the settlement, he said, members acted appropriately, legally speaking.
Still, Overstreet added the council could have opted to have a broader public discussion and given the public advance notice of its actions.
“Just because it’s a lawsuit and just because there are lawyers involved doesn’t mean the matter cannot be talked about in public,” he said. “… What the law allows you to do and what you ought to do are sometimes two different things.”
City officials have said the way they acted to approve the settlement was not unusual. It’s routine, they told me here (see the side story), for settlements to be discussed in executive session and quickly added to council agendas before the public has been given advance notice.
But the same routine — involving some of the same city officials and council members — raised questions about the city’s open government actions in the past. News Tribune reporter Kris Sherman wrote about the issue of last-minute settlement additions to the council’s meetings three years ago in this story.
Another issue raised by last week’s settlement is whether the agreement with Clear Channel predetermined aspects of a future city ordinance on billboards. Such predetermination of legislation is something that lawyers agree would invalidate the ordinance.
“If we signed a document that called for legally binding legislation, it would be null and void,” City Attorney Elizabeth Pauli agreed. “But we absolutely did not do that.”
Rather, Pauli noted the settlement specifically states the city is “contemplating the enactment of an ordinance” that would allow “digital bulletin billboard signs in exchange for the removal of existing billboard signs and/or the relinquishment of pending relocation permits.”
“No court could enforce that word — `contemplating’ — to mean we are legally binding legislation,” Pauli said.
In fact, the council can decide any way it wants — regardless of what the settlement says — as to what its billboard legislation will say when it takes up an update of its ordinance in the future, Pauli and City Manager Eric Anderson both told me last week. If the council decides in the future to pass an ordinance to ban billboards in the city — including any digital ones referenced in the settlement — then so be it, they said.
But does that make sense? Why would the council go through the motions of approving a legal settlement with Clear Channel only to come back later with an ordinance that undermines that settlement?
Ryan Mello, one of the council members who did speak to me for the record about the settlement, told me last week it’s his understanding that any future ordinance would allow the settlement terms of the Clear Channel deal to occur.
“The terms of the settlement, as you can clearly see in the agreement, clearly would grandfather Clear Channel in with those rights (under a future ordinance),” Mello said. “But at the same time, we got rid of a substantive amount of billboards. They will be going away. We could not see ourselves getting rid of real billboards off of city blocks (and) going away so quickly without this settlement.”
So, taking Mello on the face of his words, the settlement will pre-determine to at least some extent what the city’s eventual billboard legislation must say — by grandfathering in Clear Channel’s rights.
(When I raised this issue to Anderson last week, he said I was wrongly assuming that the current ordinance didn’t already allow for digital billboards, which he contended wasn’t the case. Anderson said no new language to make such an allowance would necessarily need to be added or drafted to any new or amended legislation in the future, because the ordinance doesn’t differentiate between billboards, whether digital or not. So, they’re already allowed, he said. Maybe so — three years ago. But under the existing city ordinance in question, any of Clear Channel’s billboards meeting certain size thresholds were supposed to have been taken down in 2007. That indicates the city, in any new ordinance, would have to include specific language to allow any billboards — digital or otherwise — after 2007.)
Ford said he’s no expert on contract law. But he wonders why the city simply didn’t hinge its settlement with Clear Channel so that it took effect after the city adopted its new billboard legislation, thus avoiding the predetermination issue altogether.
“What I would have done was try to make (the settlement) effective after a proposed ordinance was passed,” Ford said. “What’s the point of having a settlement if (Clear Channel doesn’t) get the ordinance they want passed? If that happens, they’re still going to have a lawsuit against the city.”