HomeMy WebLinkAbout092422 Re_ Serial meetings (0002)Mr. Thiersch:
I will re-read the Egan case and respond to your email.
Philip
Philip C. Hunsucker
Chief Civil Deputy Prosecuting Attorney
Jefferson County Prosecuting Attorney's Office
P.O. Box 1220, Port Townsend, WA 98368 <x-apple-data-detectors://2/0>
Ph: 360-385-9180 <tel:360-385-9180>
Fax: 360-385-0073 <tel:360-385-0073>
All e-mail sent to this address has been received by the Jefferson County e-mail system and is therefore subject to the Public Records Act, a state law found at RCW 42.56. Under the
Public Records law the County must release this e-mail and its contents to any person who asks to obtain a copy (or for inspection) of this e-mail unless it is also exempt from production
to the requester according to state law, including RCW 42.56 and other state laws.
(Sent from my iPhone)
On Sep 24, 2022, at 08:35, Tom Thiersch <tprosys@gmail.com> wrote:
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Mr. Hunsucker,
When a governing body makes a decision by separately polling / surveying its members, whether in writing or by means of separate conversations, all while knowing that such a survey
was or would be taking place, that seems like a textbook example of a serial (aka, “hub and spoke”) meeting.
There is a scarcity of case law on the OPMA and serial meetings. Recently, however, in Egan v. City of Seattle, 471 P.3d 899 (Wash. Ct. App. 2020), the COA determined that “… ‘sufficient
evidence’ existed that a majority of council members had decided [through a series of separate conversations and texts] to repeal the head tax before a public vote.”
The case was remanded to the trial court and subsequently settled before trial for $35,000 (about 10 times what the penalty amount would have been), according to:
https://www.seattletimes.com/seattle-news/politics/seattle-agrees-to-pay-35000-to-settle-lawsuit-alleging-city-council-broke-open-meetings-law-over-head-tax-repeal/
Tom Thiersch
From: Philip Hunsucker <PHunsucker@co.jefferson.wa.us <mailto:PHunsucker@co.jefferson.wa.us> >
Sent: Wednesday, August 24, 2022 12:08 PM
To: Tom Thiersch <tprosys@gmail.com <mailto:tprosys@gmail.com> >; jeffbocc <jeffbocc@co.jefferson.wa.us <mailto:jeffbocc@co.jefferson.wa.us> >
Cc: Mark McCauley <MMcCauley@co.jefferson.wa.us <mailto:MMcCauley@co.jefferson.wa.us> >
Subject: RE: Serial meetings
Mr. Thiersch:
I disagree that individual conversations with commissioners can constitute a “serial meeting.”
Philip
pronouns: he/him/his
Philip C. Hunsucker
Chief Civil Deputy Prosecuting Attorney
Jefferson County Prosecuting Attorney’s Office
P.O. Box 1220, Port Townsend, WA 98368
Ph: 360-385-9219 (direct)
All e-mail sent to this address has been received by the Jefferson County e-mail system and is therefore subject to the Public Records Act, a state law found at RCW 42.56. Under the
Public Records law the County must release this e-mail and its contents to any person who asks to obtain a copy (or for inspection) of this e-mail unless it is also exempt from production
to the requester according to state law, including RCW 42.56 and other state laws.
From: Tom Thiersch <tprosys@gmail.com <mailto:tprosys@gmail.com> >
Sent: Wednesday, August 24, 2022 10:55 AM
To: jeffbocc <jeffbocc@co.jefferson.wa.us <mailto:jeffbocc@co.jefferson.wa.us> >
Cc: Philip Hunsucker <PHunsucker@co.jefferson.wa.us <mailto:PHunsucker@co.jefferson.wa.us> >; Mark McCauley <MMcCauley@co.jefferson.wa.us <mailto:MMcCauley@co.jefferson.wa.us> >
Subject: Serial meetings
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Commissioners,
From the BoCC’s August 22, 2022 meeting, 2:48:34 into the AVCA recording, referring to the delegation of authority to Mr. McCauley to sign the lease agreement with OlyCAP before the
next BoCC meeting:
Mr. Hunsucker:
"I'd also say that if there was a significant change, and you delegated this, and there was a significant change, I'm pretty sure that Mark would talk to each individually about it
and then you'd decide whether to bring it back before the board. He would not sign it unless everybody had -- he had gotten consensus from everybody."
I was disappointed to hear your legal counsel encouraging you to take Action in violation of the Open Public Meetings Act (OPMA). Conducting a serial meeting as described by Mr. Hunsucker
would have been a clear and obvious violation of the OPMA.
Later in the day, you came to the correct conclusion that any such Action (and, of course, any Final Action) would have to take place during a Regular or Special Meeting and you then
scheduled a Special Meeting for August 26 to address the matter.
But this is not the first time you’ve (almost) crossed the line when it comes to serial meetings.
I urge you to be much more careful in the future; serial meetings are illegal.
Thank you,
Tom Thiersch
Member, Washington Coalition for Open Government <https://www.washcog.org/>
==== [RCW 42.30.010 Open Public Meetings Act <https://apps.leg.wa.gov/rcw/default.aspx?cite=42.30&full=true> ] ==== ==== [RCW 42.56.030 Public Records Act <https://app.leg.wa.gov/RCW/default.aspx?c
ite=42.56&full=true> ] ====
"The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide
what is good for the people to know and what is not good for them to know. The people insist on remaining informed and informing the people's public servants of their views so that
they may maintain control over the instruments that they have created."
###
P SAVE PAPER - Please do not print this e-mail unless absolutely necessary.
https://mrsc.org/Home/Stay-Informed/MRSC-Insight/November-2020-1/What-Is-a-Serial-Meeting-under-the-OPMA.aspx <https://mrsc.org/Home/Stay-Informed/MRSC-Insight/November-2020-1/What-Is-a-Serial-Meeti
ng-under-the-OPMA.aspx>
“A serial meeting occurs when a majority of members of a governing body have a series of smaller gatherings or communications that results in a majority of the body collectively taking
action even if a majority is never part of any one communication. Such a meeting violates the OPMA because it amounts to taking “action” — as defined in RCW 42.30.020(3) — outside an
open meeting.”
RCW 42.30.020 <http://app.leg.wa.gov/RCW/default.aspx?cite=42.30.020>
Definitions.
As used in this chapter unless the context indicates otherwise:
(1) "Public agency" means:
(a) Any state board, commission, committee, department, educational institution, or other state agency which is created by or pursuant to statute, other than courts and the legislature.
This does not include a comprehensive cancer center participating in a collaborative arrangement as defined in RCW 28B.10.930 <http://app.leg.wa.gov/RCW/default.aspx?cite=28B.10.930>
that is operated in conformance with RCW 28B.10.930 <http://app.leg.wa.gov/RCW/default.aspx?cite=28B.10.930> ;
(b) Any county, city, school district, special purpose district, or other municipal corporation or political subdivision of the state of Washington;
(c) Any subagency of a public agency which is created by or pursuant to statute, ordinance, or other legislative act, including but not limited to planning commissions, library or park
boards, commissions, and agencies;
(d) Any policy group whose membership includes representatives of publicly owned utilities formed by or pursuant to the laws of this state when meeting together as or on behalf of participants
who have contracted for the output of generating plants being planned or built by an operating agency.
(2) "Governing body" means the multimember board, commission, committee, council, or other policy or rule-making body of a public agency, or any committee thereof when the committee
acts on behalf of the governing body, conducts hearings, or takes testimony or public comment.
(3) "Action" means the transaction of the official business of a public agency by a governing body including but not limited to receipt of public testimony, deliberations, discussions,
considerations, reviews, evaluations, and final actions. "Final action" means a collective positive or negative decision, or an actual vote by a majority of the members of a governing
body when sitting as a body or entity, upon a motion, proposal, resolution, order, or ordinance.
(4) "Meeting" means meetings at which action is taken.
[ 2022 c 71 § 11 <http://lawfilesext.leg.wa.gov/biennium/2021-22/Pdf/Bills/Session%20Laws/House/1744.SL.pdf?cite=2022%20c%2071%20%C2%A7%2011> ; 1985 c 366 § 1 <http://leg.wa.gov/CodeReviser/document
s/sessionlaw/1985c366.pdf?cite=1985%20c%20366%20%C2%A7%201> ; 1983 c 155 § 1 <http://leg.wa.gov/CodeReviser/documents/sessionlaw/1983c155.pdf?cite=1983%20c%20155%20%C2%A7%201> ; 1982
1st ex.s. c 43 § 10 <http://leg.wa.gov/CodeReviser/documents/sessionlaw/1982ex1c43.pdf?cite=1982%201st%20ex.s.%20c%2043%20%C2%A7%2010> ; 1971 ex.s. c 250 § 2 <http://leg.wa.gov/CodeReviser/documents
/sessionlaw/1971ex1c250.pdf?cite=1971%20ex.s.%20c%20250%20%C2%A7%202> .]
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