Violation of Open Public Meetings Act?

From Clark County: A controversy is stirring regarding the City's proposal to purchase a Building owned by "The Columbian."

According to the documents below - the City has conducted all of the discussions about purchasing the building behind closed doors.

From: Bob Koski
To: Ted H. Gathe
Cc: Tyler, Lloyd ; Tim Leavitt ; Royce Pollard ; Pollard, Royce ; Pat McDonnell ; Pat Jollata ; Larry Smith ; Jeanne Stewart ; Jeanne Harris ; Campbell, Pat
Sent: Monday, November 17, 2008 7:23 AM
Subject: Citizen Service Center (CSC) Replacement Project Briefing Memorandum

Dear Mr. Gathe;

On Thursday October 9, 2008, City Manager Pat McDonnell sent out a Memorandum entitled "Replacement of the Citizen's Service Center". That memorandum was prepared in response to the earlier announcement of the pending bankruptcy filing of the Columbian, and word that the building would be put up for sale.

In that Memorandum the City Manager said, in part, that the process could take "several months" and that any action would have to be authorized specifically by City Council.On Friday November 13, the City of Vancouver's Development Director Eric Holmes issued a different Memorandum (attached) to the City Manager, in which he made a number of stunning and very troubling statements.

1. "The city’s team recently gave updates on both acquisition and construction options at the Facilities Executive Sponsor Team (FEST). Many of the questions posed at that meeting, in other Council forums and by the media regarding the acquisition alternative cannot yet be answered because we have not completed any due diligence on the building."

2. "Meanwhile, the city team has engaged an “expert review panel” of business leaders with extensive finance, real estate and construction experience and skills to serve as a sounding board on this issue. They include: • Pat Schaefer, Riverview Bank• Paul Christensen, Realvest• Ron Frederickson, RSV Construction• David Horowitz, CPA• Scott Fraser, Industrial Broker, GVA Kidder Matthews• Wally Hornberger, Commercial Broker, Coldwell Banker"

3. "The city’s team met with these leaders in October to review the potential of acquisition of an existing building as an alternative to constructing our own CSC replacement facility. Each believed it was a prudent business move for the city to seriously explore acquisition as an alternative to construction. Moreover, these business leaders strenuously advised that the city retain an expert broker to represent us in any due diligence and negotiations to ensure a neutral, arms-length, third-party, expert process."

4. "As a result of this feedback, the city completed a procurement process in early November to hire a commercial broker. Of the four submitting firms, Eric Fuller & Associates ranked as the most qualified after review of written submittals and interviews. The business panel members, who provided input in the review and selection process, agreed. Our agreement with Eric Fuller & Associates provides for their fees, if any, to be paid by the seller, so result in no direct costs to the City. If no purchase is ever perfected, the City pays nothing to Eric Fuller & Associates."

Mr. Gathe, it is deeply troubling to me that the City's Development Director Eric Holmes was able to proceed as far as he has, just one month after the City Manager said it would take much longer than that just to gather all of the facts, and guaranteed that City Council would make any decisions about this purchase.

I have heard not one word from anyone on Council discussing this in Public, nor have any of them indicated to me that an Executive Session was convened already to consider this issue in private.

I am requesting that your office investigate this memorandum, and find out exactly how Eric Holmes was able to convene a panel of experts, receive their judgment that a purchase of the Columbian building was the best option for the City to pursue, all while the City Council has been focused on the 2009-2010 Budget, and all in a little over 1 month's time.

I believe this particular transaction is fraught with hazards, and I want to be certain that responsible, elected, and accountable people are properly supervising the City Manager's Office as well as the City's Development Department.

Was anyone on City Council consulted about the process Mr Homes describes in his memo, and if so who was it?

Did anyone on City Council approve these actions by Mr. Holmes? If so, who?

Was a proper Executive Session conducted to authorize Mr. Homes to proceed in this manner? If so, when was it conducted and who was in attendance?

In addition Mr. Gathe, it strikes me that if tT Columbian Publishing Company is indeed filing for Chapter 11 Bankruptcy, then the Bankruptcy Court will have to determine what assets the company owns, what the value of those assets are, and how they shall be disposed of.

Am I wrong in presuming that the Bankruptcy Court will have a big say in the potential sale of anything owned by the Columbian?

Am I wrong to be concerned that the City's Development Director is apparently unaware of what role a bankruptcy court will play in all of this?

Finally, Mr. Holmes indicates in his memorandum that any fees associated with the Eric Fuller and Associates will be paid by "the seller". Considering that the seller, The Columbian, is filing for Chapter 11 Bankruptcy, it strikes me that "the seller" will gladly pay for a lot of Eric Fuller and Associates' time, if that time leads to a prompt sale if the building to the City of Vancouver. At the very least we have the appearance of impropriety here since "the seller" has a vested interest in this transaction.

This does not look like transparent Government to me. There has been a great deal of activity on this subject that has taken place behind closed doors, out of Public view, and by employees of the City of Vancouver who do not have statutory authority to approve these kinds of actions on behalf of the City's voters.

If City Council is truly supposed to be involved in this process and approve everything that takes place on a decision of this magnitude, then I look to your office for the assurance that is in fact happening in accordance with Public Disclosure Commission rules and in accordance with the City Charter and the Revised Code of Washington.

Thank you for your time, and I look forward to clearing this matter up promptly.

Sincerely;
Robert J. Koski

Citizen Service Center (CSC) Replacement Project Briefing Memo (Click Me to read the original)

Chapter 42.30 RCW
Open public meetings act
Complete Chapter

Here is the link to Clark Blog: http://www.clarkblog.org/vBulletin/showthread.php?t=3692

Clarkblog has received 1.5 million visitors during the last 11 months.

A Reader Asks --- a Good Question

I would like to know if the City's recent decision to rescind on its agreement to abide by the County's UGA analysis, which was done in closed session, was in conformity with the law.

I, like many people, only learned about it from reading the Cascadia. Does anybody know?


Elisabeth--

I feel certain it was lawful and--pursuant to the settlement of impending litigation--rightly decided in executive session.Council revised some troublesome assertions in the Feb resolution.

Doing so probably saved the city $100K in useless litigation while changing nothing. It made good sense, even if it sent a waffling sort of message.

My $0.02. Tim Johnson -- Editor of the Cascadia Weekly


Here's a copy of the statute that covers open meetings:

RCW 42.30.060

Ordinances, rules, resolutions, regulations, etc., adopted at public meetings — Notice — Secret voting prohibited.

(1) No governing body of a public agency shall adopt any ordinance, resolution, rule, regulation, order, or directive, except in a meeting open to the public and then only at a meeting, the date of which is fixed by law or rule, or at a meeting of which notice has been given according to the provisions of this chapter. Any action taken at meetings failing to comply with the provisions of this subsection shall be null and void.

(2) No governing body of a public agency at any meeting required to be open to the public shall vote by secret ballot. Any vote taken in violation of this subsection shall be null and void, and shall be considered an "action" under this chapter.
[1989 c 42 § 1; 1971 ex.s. c 250 § 6.]

McKenna requests legislation for Public Meetings Act

A Washington State public audit of local public agencies found dozens of government employees who violated state law by witholding documents that the law says they must release.The audit was the first of it's kind to examine Washington's Public Records Act, which defines a public record as any document prepared, owned, used or kept by a state or local agency. These records are presumed to be public, unless specifically exmpted from public disclosure by law.In 1972, the Washington State Legislature declared, "Government isn't a secret business or club." It belongs to the citizens, and the public has every right to access records and participate in government proceedings. A national study of Open Meetings Act compliance awarded the State of Washington an "F" for compliance.

On January 4th, citing that there is a general lack of consistency in how governments comply with Open Public Meetings Act (OPMA), Washington State Attorney General Rob McKenna announced that he intends to request legislation that will direct the Attorney General’s Office to develop advisory model rules for the OPMA to clarify: Agencies subject to the OPMA; meetings and actions that should be conducted openly; Notice requirements for meetings; Matters that may be conducted in closed sessions; any other issues pertaining to the Open Public Meetings Act.

Public notice will be achieved by requiring an agency to: post a notice of the special meeting on the agency’s web site; Post in an open area to the public at the agencies main office; deliver written notice to each local newspaper of general circulation; and, deliver a notice to each local radio or television station only if the station has a request of file with the agency.

In response to State Auditor Brian Sonntag’s 400 incidents of concern discovered during agency performance audits, McKenna is requesting taping legislation that would let judges review conversations from government executive sessions and determine if officials are abusing the law that protects some legal, real estate and other discussions from public disclosure.

The following principles govern the Open Meetings Act. 1) People do not yield their sovereignty to the agencies which serve them. 2) People do not give public servants the right to decide what is good for the people to know and what is not good for them to know. 3) People remain informed so they may retain control over the instruments they have created.

Details of the OPMA statute: Any action taken at meetings failing to comply with the Open Public Meetings Act is null and void. RCW 42.30.060. See Clark v. City of Lakewood, 259 F.3d 996 (9th Cir. 2001). Any person may commence an action either by mandamus or injunction to stop violations or prevent threatened violations of the Open Public Meetings Act. RCW 42.30.130. Individual members of the governing body who attend a meeting in violation of the Open Public Meetings Act with knowledge of the fact that the meeting is in violation of the OPMA are subject to personal liability in the amount of a $100 civil penalty. RCW 42.30.120(1) Any person who prevails against a public agency for violation of the Open Public Meetings Act shall be awarded all costs, including reasonable attorneys' fees, incurred in connection with such legal action. RCW 42.30.120(2).

For more information about the Attorney General, please visit: http://www.atg.wa.gov/