Afternoon Jolt

Appointment Process Raises Open Public Meetings Act Questions

Why weren't council members'stated preferences initially announced publicly?

By Josh Feit April 22, 2015

Afternoon Jolt

"That's bunk," council member Tim Burgess told me about my headline earlier this morning. The headline said that Burgess had released the council tally (of council support for the applicants to fill Sally Clark's vacant seat) "under pressure."

I published the results this morning after my second request for the scorecard. 

An applicant had to get support from at least three council members to make it through to the final round.

Burgess said each council members' round-one choice was always intended to be public information. 

However, immediately after council named the finalists on Monday afternoon—simply saying which applicants had gotten three votes, but not saying who supported who—I asked Burgess to tell me which council members put their names by which applicant. He refused, telling me that would be "inappropriate" and that it would eventually be public, at the end of the process.

To prove that he'd always intended the behind-the-scenes tallying to ultimately be public, Burgess provided me with an April 14 memo today from the city clerk outlining the process. Addressed to all the council members, the memo from city clerk Monica Martinez Simmons, says the record of the process would be public. "All materials related to the council member appointment process are considered public records. Materials include, and are not limited to, notes relating to candidates, evaluations, interview questions, and correspondence in support or in opposition to individual candidates."

"Polling members and making a decision outside a public meeting can raise open public meetings act concerns."—Washington State Attorney General's OfficeThe process included notes of Burgess' tally after each council member submitted their choices.

However, despite my request on Monday for the tally, Burgess didn't release each council members' picks until he was asked again this morning by Beacon Hill neighborhood activist Roger Pence and by me for a second time. Q13 TV reporter C.R. Douglas also asked for the tally and got it this morning.

Burgess appears to have changed his mind between Monday afternoon and this morning about waiting until the end of the process before releasing council members' initial picks.

This morning, before he released the tallies, he waited until he alerted all the other council members. The email from Burgess' staffer Nat Van Duzer explained: "Tim wanted to give a courtesy heads up to his colleagues that this information about their stated preferences to him was being provided to the public in response to requests; now that that has gone out he is very willing to share this."

When I asked Burgess why, if the info was explicitly public, he needed to first run it by his council colleagues, he told me wasn't running it by them for their permission— it was simply a standard courtesy.

A larger question remains: Should the tallying itself have happened in front of the public in real time? That is: Why didn't Burgess read off each applicants' name in public while each council member publicly expressed support or lack thereof? Does an intent to reveal the tally "at the end of the process" as Burgess initially told me, constitute a public selection process?

Nancy Krier, the assistant attorney general for open government in Washington attorney general Bob Ferguson's office tells me that evaluating a candidate's qualifications for an appointment is a legitimate exception to the open public meetings act (OPMA), which otherwise mandates that when a majority of a governing body transacts business it has to be done in public. However, Krier added that "polling members and making a decision outside a public meeting can raise OPMA concerns."

In council member Burgess' defense, council member Nick Licata told me the tally was not "a straw poll" or a vote.

I have a call in to the city attorney's office who Burgess has repeatedly said signed off on the process.

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