With the revelation that Yelm City Council member Mike McGowan voted “no” after a recent council Executive Session, research indicates that the Yelm City Council may have violated Revised Code of Washington (RCW) conditions under which closed-to-the-public Executive Sessions can be held.
The City of Yelm was negotiating a water rights litigation issue with Brookdale Golf LLC., owners of the Yelm Golf Course. Mayor Harding conducted a closed-to-the-public Executive Session on this, yet made no public announcement that legal counsel would be consulted live or contacted via phone then.
In reading the Executive Session provisions on the Attorney General’s website, one finds that the Yelm City Council had no basis for holding this Executive Session.
“An agency must meet three basic requirements before it can invoke this provision [Condition (i)] to meet in closed session.”
“First, “legal counsel representing the agency” must attend the executive session to discuss the enforcement action, or the litigation or potential litigation. This is the only executive session provision that requires the attendance of someone other than the members of the governing body.”
“Second, the discussion with the legal counsel either must concern an agency enforcement action or it must concern litigation or potential litigation to which the agency, the governing body, or one of its members acting in an official capacity is or is likely to become a party.”
“The third requirement for meeting in closed session under this subsection is that public knowledge of the discussion would likely result in adverse legal or financial consequence to the agency.”
While the city may invoke Condition (i) for the purchase of a water rights agreement in a case with the city, this is NOT one of the conditions under which an Executive Session can be held, according to the OPMA [Open Public Meetings Act] from the Attorney General’s Office.
The Washington State Attorney General’s Office states these conditions must be met in Chapter 4 of the
OPEN PUBLIC MEETINGS ACT EXECUTIVE SESSIONS (CLOSED SESSIONS):
1. 4.2 Procedures For Holding An Executive Session
Statutory Provision: Before convening in executive session, the presiding officer of a governing body shall publicly announce the purpose for excluding the public from the meeting place, and the time when the executive session will be concluded. The executive session may be extended to a stated later time by announcement of the presiding officer. RCW 42.30.110(2).
2. 4.3 Grounds For Holding An Executive Session
– (a) To consider matters affecting national security;
– (b) To consider the selection of a site or the acquisition of real estate by lease or purchase when public knowledge regarding such consideration would cause a likelihood of increased price;
– (c) To consider the minimum price at which real estate will be offered for sale or lease when public knowledge regarding such consideration would cause a likelihood of decreased price. However, final action selling or leasing public property shall be taken in a meeting open to the public;
– (d) To review negotiations on the performance of publicly bid contracts when public knowledge regarding such consideration would cause a likelihood of increased costs;
– (e) To consider, in the case of an export trading company, financial and commercial information supplied by private persons to the export trading company;
– (f) To receive and evaluate complaints or charges brought against a public officer or employee.
– (g) To evaluate the qualifications of an applicant for public employment or to review the performance of a public employee.
– (h) To evaluate the qualifications of a candidate for appointment to elective office.
– (i) To discuss with legal counsel representing the agency matters relating to agency enforcement actions, or to discuss with legal counsel representing the agency litigation or potential litigation to which the agency, the governing body, or a member acting in an official capacity is, or is likely to become, a party, when public knowledge regarding the discussion is likely to result in an adverse legal or financial consequence to the agency.
and more that do not apply in this example.
The public was not informed:
– that legal counsel was in attendance of this Executive Session to discuss the litigation, the first requirement under section i.
– “the discussion would likely result in adverse legal or financial consequence to the agency,” the third requirement under section i.
– City of Yelm Oath of Office
“I do solemnly swear that I will support the Constitution and laws of the United States and the State of Washington and ordinances of the City of Yelm, and that I will faithfully and impartially perform the duties of City Council Member of the City of Yelm to the best of my ability.”
Besides Mr. McGowan who voted “no” on the Executive Session subject (saying the public was not informed) , did the balance of the Yelm City Council, including Mayor Harding, uphold THEIR oaths?