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Agency that advises Washington cities on law and best practices said using code letters to avoid ID’ing job candidates not proper under open meetings law

Post by Peter Callaghan / The News Tribune on Dec. 5, 2011 at 2:01 pm |
December 5, 2011 2:16 pm

It was a coincidence that the monthly newsletter of the Municipal Research Services Center had a question and answer about open meetings law that was exactly on point to an issue facing the Tacoma City Council.

Had it come out a little earlier, though, it might have headed off an issue about the conflict between open government and promises of confidentiality to applicants for prominent government offices.

The newsletter’s feature “Ask MRSC” has a question about whether state open meetings law allows a council to assign letters to job finalists to avoid revealing the names of applicants in public That’s what the Tacoma city council was planning to do Tuesday to reduce a list of seven city manager finalists to three or four. Only after debating their qualifications and voting on the final list in public but by code did the council intend on revealing the names. Those who didn’t make the final cut would have remained anonymous.

The council decided not to use the method after questions were raised about its legality, though city staff has not conceded that it would be illegal under open meetings law. Our story on the appointment issue is here. Executive Editor Karen Peterson discussed the problems with voting by code here.

Here is the question and answer from the MRSC newsletter:

“May a hospital district commission vote on candidates for district superintendent in open session without naming the candidates, i.e., assigning numbers to the candidates and voting on the candidates based on those numbers?”

It is MRSC’s opinion that a local government governing body would not be permitted by the Open Public Meetings Act to vote in this manner, as it appears to be a form of secret ballot prohibited by RCW 42.30.060(20), which states:

No governing body of a public agency at any meeting required to be open to the public shall vote by secret ballot.

Although the public would know which numbered candidate each member would be voting on, that knowledge would be meaningless, because the public would not know the actual person the members are voting for. Although the candidate with the most votes would have to be named, and the public would know who voted for that candidate, the public would still not know who the other candidates were.

That is not an open process. The purpose of the proposed procedure here is understandable – the candidates may have current jobs and may not want their employers to find out they are looking for other positions (presumably the same reason behind the public disclosure exemption in RCW 42.56.250(2) for “All applications for public employment, including the
names of applicants . . . .”). However, the legislature has not authorized keeping those names confidential when appointments must be made by a governing body in open session. Most appointments are, of course, made by the executive branch of an agency.”

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