Eugster v. City of Spokane

• Decision Date: 05 February 2002
• Docket Number: No. 20078-7-III.,20078-7-III.
• Citation: 39 P.3d 380,110 Wash.App. 212
• Court: Washington Court of Appeals
• Parties: Stephen K. EUGSTER, Appellant, v. CITY OF SPOKANE, a Washington first class charter city; The Spokane City Council, the legislative body of the City; Rob Higgins, the Spokane City Council President; Roberta Greene, City Council Member; Phyllis Holmes, City Council Member; and, Steve Corker, City Council Member, Respondents.

39 P.3d 380

110 Wash.App. 212

Stephen K. EUGSTER, Appellant, v. CITY OF SPOKANE, a Washington first class charter city; The Spokane City Council, the legislative body of the City; Rob Higgins, the Spokane City Council President; Roberta Greene, City Council Member; Phyllis Holmes, City Council Member; and, Steve Corker, City Council Member, Respondents.

No. 20078-7-III.

Court of Appeals of Washington, Division 3, Panel Three.

February 5, 2002.

Reconsideration Denied March 18, 2002.

Stephen K. Eugster, Eugster Law Offices, Pro se.

Meriwether D. Williams, Winston & Cashatt, Seafirst Financial Center, Spokane, for Respondents.

BROWN, A.C.J.

Stephen K. Eugster appeals the dismissal of his complaint against the City of Spokane, Spokane City Council, and four Council Members over the selection process proposed to fill a vacant Council position. Mr. Eugster alleged violations of the Open Public Meetings Act, (OPMA) chapter 42.30 RCW, entitling him to attorney fees, equitable relief and declaratory judgment. Before dismissal, Mr. Eugster unsuccessfully sought disqualification of the defendants' attorneys and CR 11 sanctions. Because genuine issues of material fact exist as to whether a "meeting" took place in violation of the OPMA, we affirm in part, reverse in part and remand for fact-finding and consideration of attorney fees.

FACTS

In late 2000, a Spokane City Council (Council) position was vacated. The Spokane City Charter, section 8(b), provided vacancies were to be filled by a majority vote of the remaining Council Members, but did not detail an exact process.

On January 2, 2001, the Council discussed the vacancy during its regularly scheduled legislative session. Council President, Rob Higgins, suggested each Council Member submit five names from among the applicants. A committee of three Council members would then reduce the recommended applicants to five finalists who would be interviewed by the Council. In response, Council Member Stephen Eugster opined that if the Council chose to follow this recommendation, the Council would need to adopt an interim rule. A motion to adopt President Higgins's suggestion passed by a majority vote (3-2), but was continued to the next meeting because it did not receive the necessary four votes to pass. Council Member Phyllis Holmes was not present at this meeting. The matter was continued to January 8.

On January 8 at the Council's briefing session, President Higgins brought up a January 5 Memo to the Council suggesting a revised selection process and stating: "I think we've resolved the differences with the majority of the Council." Clerks Papers (CP) at 75. The memo indicated President Higgins formulated the suggestion in a meeting with Council Members Roberta Greene and Steve Corker. Mr. Eugster refers to the process described in the January 5 Memo as the "Procedure" in his later filed complaint and in the briefing here.

Mr. Eugster asked if President Higgins was making the Procedure a new rule. President Higgins indicated the resolution was not a rule and explained: "This is a process that we're adopting for the interviews." CP at 75. Then, President Higgins elaborated: "And I believe, I've talked to each Council Member, the majority is in agreement that this is a process that we'll use for this selection process." CP at 75-76. Mr. Eugster immediately objected:

First of all, you violated the Open Meetings Act because the process is a public, or a governmental action and you have to take that action in a public meeting. You can't go out and gather up your votes and then announce to the constituents or the electors of this City that you've reached a resolution. Secondly, a resolution, or your proposal, has to be adopted at a Council meeting as a rule, and you can only do that by properly submitting the matter as a legislative agenda item under our Council rules.

CP at 76.

President Higgins bypassed Mr. Eugster's concerns, stating:

Anything else? Okay. Any other comments? Okay. Thank you for your input. We'll go ahead and follow that process and hopefully come to some agreement on a Council position.

CP at 76. When pressed by Mr. Eugster, President Higgins explained he had "ruled that this is a legitimate process" and when pressed again, President Higgins ruled Mr. Eugster "out of order" and cut off discussion. CP at 77.

At the later legislative session on January 8, Mr. Eugster again voiced his concerns. In response, President Higgins indicated the January 5 memo contained an error. The Council did not intend to "select" a final Council member in executive session. CP at 80. Later at the same session, responding to Council Member Greene's request to explain the final process and the January 5 Memo, President Higgins granted that Mr. Eugster, "is correct when he-because the Memo was incorrect if it stated that we are going into Executive Session." CP at 82. Then, President Higgins related his understanding of the process, basically a reiteration of the January 5 Memo except for the stated correction. Instead of the Procedure, in the amended process the Council would "discuss" the finalists at executive session, then publicly vote at the January 29 regularly scheduled council meeting. CP at 82. For clarity we refer to this understanding as the "amended process."

The Council Action Memorandum of the January 8 events detailed President Higgins's briefing session remarks related to the Procedure: "He [President Higgins] noted that a majority of the Council Members is in agreement with this process." CP at 33. The Memorandum detailed the amended process as discussed in the later legislative session.

On January 9, Chief Administrative Assistant Reagan Oliver sent an e-mail to Mr. Eugster, explaining she had drafted the January 5 Memo in error. The memo should have read that the Council would "discuss" the final interviews in executive session with the actual selection to be made during a regular Council meeting. CP at 110.

On January 10, Mr. Eugster filed suit against the City, the City Council, President Higgins, and Council Members Corker, Greene and Holmes (Defendants). The complaint claimed: the Procedure was a final action violating the OPMA (Count 1), the Defendants conducted a meeting where action was taken with knowledge the meeting violated the OPMA (Count 2), the Procedure violated the City Charter because President Higgins did not have authority to establish the Procedure (Count 3), the Procedure violated the City Charter because it did not allow for majority selection of the new council member (Count 4), the Procedure violated Council rules by exceeding President Higgins's authority (Count 5), and because it was not adopted as required by Council rules (Count 6), the Procedure violated Robert's Rules of Order (Count 8, Count 7 was omitted), RCW 4[2].30.120 provided for attorney fees (Count 9), declaratory judgment was proper for the claimed controversies (Count 9, Count 9 is repeated), and, finally Mr. Eugster claimed, under the facts, the OPMA granted authority for injunctive relief (Count 10).

On January 29, pursuant to motion by Mr. Eugster, the trial court entered an order for the Defendants to show cause why, on February 13, the relief sought in Mr. Eugster's complaint, including equitable relief, civil penalties and attorney fees, should not be granted. Later, at the January 29 City Council meeting, the Council considered and passed Resolution 01-05 to amend the City Council Rules of Procedure and establish a selection process for the vacant seat. Resolution 01-05 effectively superceded the amended process. Although the Resolution received a majority vote, it did not receive the necessary four votes to pass, and was continued to February 5 when it passed. Mr. Eugster does not challenge the validity of Resolution 01-05. The Resolution process was eventually used to select a new council member. On the 67th roll call, Mr. Eugster's proposed candidate was finally approved.

On the day before the February 13 show cause hearing, Mr. Eugster filed a motion to disqualify the Spokane City Attorney's office from jointly representing the named Defendants, along with a motion to shorten time for hearing on this motion. On February 13, the trial court considered the order to show cause based upon memoranda and affidavits, but declined to shorten time.

At the February 13 show cause hearing, the trial court reasoned that to violate the OPMA, a "meeting" had to occur, with an "action" taken. CP at 226. Noting the conjunctive and before the words "final action" in the definition of "action," the trial court interpreted the definition of "action" to require a "final action." CP at 227. Further, a meeting required the contemporaneous presence, whether in person or by telephone, of a majority of the Council. The court noted Council Member Holmes was not present at any meeting at which any "action" took place. At most, three of six Council Members engaged in discussions resulting in a permissible discussion draft, the Procedure. The trial court likened the discussions to lobbying or "running ideas up the flagpole." CP at 229-30. Thus, it reasoned the Procedure was merely a discussion draft.

Referring to the Procedure, the court noted the process described, if implemented, would have violated the OPMA because it called for an executive session vote. However, that concern was moot once the process was corrected before adoption and application. Accordingly, the court denied Mr. Eugster's show cause motion.

On February 14, Mr. Eugster filed a second motion to disqualify the City Attorney's office from jointly representing the Defendants. The Defendants then filed a notice of substitution for Meriwether D. (Mike) Williams and the law firm of Winston & Cashatt, "subject to Court approval if an objection or request for further disqualification of counsel is made by plaintiff." CP at 235. At the same time, the Defendants noted a hearing for presentation and...