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Attorney general sides with newspaper in Oak Harbor meeting dispute

An Oak Harbor ordinance allows some of its city council meetings to be held illegally, according to a legal opinion sought by the Whidbey News-Times and release this week by the Washington State Attorney General's Office.

The legal opinion stems from a controversy concerning public meeting rules in Oak Harbor and it appears sub-committee meetings and regular meetings of the City Council are not the same after all.

According to the opinion released Nov. 30, council members may attend sub-committee meetings, but if a quorum is in attendance – four or more members – and they take action, the meeting must be advertised as a special meeting. By state statute, action is more than just taking a vote and can include taking public testimony, deliberations, discussions, considerations, reviews, and evaluations by council members.

Advertising such a meeting as just another standing committee is not sufficient to meet the burden demanded by the Open Public Meeting's Act, the opinion said.

"Such notice would not satisfy the purpose of the Act – to assure advance notice to the public of meetings of a governing body,'" the opinion said.

While it's unclear when changes to the city's existing ordinance will be made, Oak Harbor Mayor Jim Slowik confirmed that city staff will comply with the decision and forward a recommendation to the City Council to alter its existing policies.

"We committed to any decision that came down from the attorney general and we are prepared to live with it," Slowik said.

Marcia Van Dyke, publisher of the Whidbey News-Times, said she was pleased but not terribly surprised with the attorney general's opinion.

"The intent of the Open Public Meetings Act is clearly to provide citizen access and government accountability," she said. "This mayor and council looked for loopholes that weren't there. No one is accusing city officials of trying to hide anything, but we need to ensure transparency for the future."

Bill Will, general manager for the Washington Newspapers Publishers Association, also hailed the opinion as a victory for transparency and open government. City officials should not be villanized over the matter, he said, but the Open Public Meetings Act is in place for a reason and it must be adhered to no matter how difficult it is.

"They were doing this for convenience sake but democracy is sometimes not convenient," Will said.

Earlier this year, the City Council proposed an ordinance that would make sub-committee meetings the same as regular council meetings. The purpose behind the new rule was to allow council members to attend sub-committee meetings without creating a quorum and violating the Open Public Meetings Act.

The rule was in response to a March Public Works sub-committee meeting in which six of the seven council members attended and reviewed documents concerning the SE Pioneer Way Improvement Project.

When questioned at the time about the proposal, Tim Ford, ombudsmen for the Attorney General's Office, said the meetings must be noticed as "special" meetings. Unlike regular meetings of the council, council members are not required to be present at sub-committee meetings. Therefore, without the special notice, the public would never know when the council would show up and potentially conduct business.

Following the advice of City Attorney Margery Hite, the council ignored Ford's comments and in a June meeting they adopted the ordinance anyway. In response, the Whidbey News-Times asked state Rep. Barbara Bailey, R-Oak Harbor, to request a formal opinion from the office of Attorney General Rob McKenna.

In a July news release, Oak Harbor Mayor Jim Slowik endorsed the request.

"In hopes of finally putting the issue to rest, the city has asked Representative Barbara Bailey to make a request to the Attorney General’s office for a formal legal opinion on the questions that appear to be generating concern," the release said.

On Thursday, Slowik said that the city's request was essentially a promise to let a third party decide the matter. And now that an opinion has been issued, he intends to follow it.

"We asked for the attorney general's decision so we'll live with it," Slowik said.

However, he said there were confusing parts, among them a statement that sub-committee meetings are "a separate governing body from the City Council." While city staff also attends, each sub-committee is composed of three council members.

Slowik also said that since the March meeting, a quorum of the council has never taken place at any sub-committee meeting. The city's ordinance allowed one to occur, but the Open Public Meetings Act has never in fact been violated. The only exception was the March meeting, and at the time, city staff had a different understanding of the open meetings act.

"In those days, we didn't have the attorney general's opinion so I don't feel we broke the rules even then," Slowik said.

City staff will recommend changes to the ordinance, but it won't happen at the council meeting this Tuesday, Dec. 7. According to Slowik, the issue should be discussed in a workshop and one won't likely be scheduled until after the holidays.

City Councilman Jim Campbell, who did not attend the March sub-committee meeting and voted against the ordinance in June, promised that one way or another the subject will be discussed next week. The outcome from the state was not only expected, but long overdue.

"It's about damn time," Campbell said.

"It's what I've been saying all along," he said.

It's unfortunate that it took an official opinion from the state attorney general to convince city officials that something was amiss, said Campbell, but he expressed relief that Slowik promised to comply with the decision.

City Councilman Scott Dudley, who also voted against the June ordinance, agreed. He said it was the right thing to do and applauded Slowik for "taking the appropriate action."

"The sad thing is nothing would have been done had it not been for the Whidbey-News Times bringing it to the public's attention," Dudley said. "My hat is off to you."

Councilman Bob Severns, Rick Almberg, Jim Palmer and Councilwoman Beth Munns, all of whom voted for the ordinance, could not be reached for comment.

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