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Forecast Council chair says he’ll get legal advice next time

Post by Brad Shannon / The Olympian on Sep. 7, 2012 at 7:05 am |
September 6, 2012 8:05 pm

After agreeing to hire a new permanent executive director Thursday, a second member of the Economic and Revenue Forecast Council acknowledged that they likely failed to follow open-meetings law in the interview process. Rep. Ross Hunter, D-Medina and chairman of the House budget committee, said he believes a reporter’s objections (mine) were correct.

But Hunter said he doesn’t think the hiring decision – hiring interim agency director Steve Lerch permanently for a job that will pay about $140,000 a year – is in legal peril as a result of a failure to notify the public its members were meeting behind closed-doors.

The problem: The seven-member forecast council, which acts as a state decision-making body, got five of its members together to interview three finalist candidates for the executive director’s job recently. But five members is a quorum, and the assembled members did conduct state business by interviewing the candidates.

Moreover, the Forecast Council came to enough of an agreement behind closed doors that the council’s staffers announced  that  Lerch would become the new permanent director – once the council was able to vote in public session.

See the release here.

Under the law, government boards and councils must publicize such a gathering – as they typically would for a public meeting of the Forecast Council.

State budget director Marty Brown, who serves on the council, came to the same conclusion last week as Hunter has. He told The News Tribune’s Peter Callaghan for this blog post that the council should have done a better job announcing its interview sessions.

The council met with and interviewed three finalists out of 17 who applied for the job.

Raising questions about the method that a public agency conducts its meetings may seem a bit technical to some readers – and raising questions about this one may seem petty. But the state’s open meetings laws exist to keep hiring and other governmental decisions honest – and to avoid having decisions that belong in the public light taken under the cloak of secrecy.

And as a decision-making body that has ties to the Legislature, the council can be seen as setting an example for other jurisdictions that also are required to follow open records and open meetings laws.

That said, one leading member of the council insisted no missteps were taken. State Rep. Ed Orcutt, the Kalama Republican who chairs the council, tried to argue Thursday that there was not even an executive session – only a hiring committee meeting.

But the law does not provide for those.

Orcutt did say after the council’s meeting adjourned that he would seek legal counsel next time before carrying out any interviews in the fashion he had done this time.

Hunter and Orcutt were among the five Forecast Council members that attended last last week’s interviews. They said others were Brown, state revenue director Brad Flaherty and state Treasurer Jim McIntire. Also present were personnel consultant Dennis Karras, stand-ins for two senators on the council, Dino Rossi and Ed Murray, and council staffers.

The council’s failure to publicize its meeting is not its only apparent violation of the Open Public Meetings Act. The board members attending the interviews also expressed opinions about the relative merits of the candidates in their executive session and did some calculating of the support they had for finalists – and they did not hide that.

As Hunter put it: “We had to count the votes. That’s what you do in executive session.’’

But Hunter insisted no final decision was actually reached behind closed doors. He pointed to the fact that Sen. Rossi, who attended Thursday’s public meeting, provided the key fifth vote  to authorize the hiring.

Toby Nixon, president of the Washington Coalition for Open Government (an open-government watchdog), said the council clearly violated the Public Meetings Act, and it violated the law several ways.

“If they have a quorum of the entire board there, then it is a meeting of the board. There is a very clear attorney general opinion about that,” Nixon explained.

Nixon added that to have such an executive session, the council would have had to advertise a regular meeting, then announce publicly during the meeting that members would be going into a special session – while also explaining the purpose of that session and how long it would last.

Once in an executive session, the members’ actions would be limited.

“There is absolutely clear case law that they can’t make the final decision in executive session and they can’t really do a straw poll to try to narrow the field in an executive session,” Nixon said. “(I)t’s obvious they did that – because they published a news release, even if it was accidental, before the meeting. They clearly violated the open meetings act.’’

That said, there does not appear to be any sanction in the offing.

Someone from the public would have to take the council to court. Penalties of up to $100 could be assessed against council members – if they were found to have acted knowingly, according to state law.

 

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