IN RE RECALL OF LAKEWOOD CITY COUNCIL

• Decision Date: 06 September 2001
• Docket Number: No. 69770-1.,69770-1.
• Citation: 30 P.3d 474,144 Wash.2d 583
• Parties: In re the RECALL OF LAKEWOOD CITY COUNCIL MEMBERS, Bill Harrison, Pos. 1; Ann Kirk Davis, Pos. 2; Sherri Thomas, Pos. 3; Jose Palmas, Pos. 4; Doug Richardson, Pos. 5; Larry Humphrey, Pos. 6; and Claudia Thomas, Pos. 7.
• Court: Washington Supreme Court

30 P.3d 474

144 Wash.2d 583

In re the RECALL OF LAKEWOOD CITY COUNCIL MEMBERS, Bill Harrison, Pos. 1; Ann Kirk Davis, Pos. 2; Sherri Thomas, Pos. 3; Jose Palmas, Pos. 4; Doug Richardson, Pos. 5; Larry Humphrey, Pos. 6; and Claudia Thomas, Pos. 7.

No. 69770-1.

Supreme Court of Washington, En Banc.

Considered March 7, 2001.

Decided September 6, 2001.

David Anderson, Ron Cronk, Lisa L. Shanahan, John Arbeeny, Robert V. Zemmers, Todd Smith, Lakewood, for Appellant.

Joseph F. Quinn, Tacoma, for Respondent.

CHAMBERS, J.

Pro se Zemmers, John Arbeeny, David G. Anderson, Ron Cronk, Lisa L. Shanahan, and Todd Smith appeal from a judgment dismissing their recall petitions against the members of the Lakewood City Council. We affirm.

Appellants alleged that respondents violated the Open Public Meetings Act, chapter 42.30 RCW, by meeting in closed session on December 13, 1999 to discuss with the city manager and city attorney a lawsuit challenging the constitutionality of Initiative 695, or, in the alternative, asking the courts to authoritatively construe the voter approval requirements of the initiative. Lakewood joined only to the latter portion of the lawsuit.

At the hearing to determine the sufficiency of the charges, the superior court heard testimony from the petitioners and examined declarations from council members, the city attorney, and the city manager. Based on this evidence, the court determined that the petition was factually and legally insufficient as the petitioners had failed to establish the council members had violated the Open Public Meetings Act.

This Court reviews recall petitions using the same criteria as the superior court. In re Recall of Shipman, 125 Wash.2d 683, 684, 886 P.2d 1127 (1995). The fundamental requirement is that the charges be both factually and legally sufficient. Id. "To be legally sufficient, the petition must state with specificity substantial conduct clearly amounting to misfeasance, malfeasance or violation of the oath of office." Chandler v. Otto, 103 Wash.2d 268, 274, 693 P.2d 71 (1984).

A discussion with counsel about litigation is not on its face substantial conduct amounting to misfeasance, malfeasance, or violation of the oath of office. Arguably, a violation of the Open Public Meetings Act would be. However, this Court finds no violation. Under the statute, the attorney/client privilege exception is available when the relevant agency (1) discusses with counsel (2) actual or potential litigation (3) where public knowledge of the discussion is likely to cause adverse legal or financial consequence. See former RCW 42.30.110(1)(i) (1989).

Elements (1) and (2) are not disputed, only element (3) whether adverse consequences were likely. Petitioners argue that since the council joined only the portion of the Initiative 695 lawsuit seeking clarification, no adverse consequences were likely, and therefore this exception is not available.

The Legislature sought to balance the public policy against secrecy and governmental affairs and the attorney/client privilege. In our jurisprudence, the attorney/client privilege has its foundation in the United States Constitution. Its constitutional foundation is found in the Fifth Amendment privilege against self-incrimination, the Sixth Amendment right to counsel and the due process clause of the Fourteenth Amendment. These rights can only be protected if there is candor and free and open discussion between client and counsel.

Adopting petitioners' reading of the statute would require us to find the legislature intended to put public officials in the untenable position of determining before hand whether the disclosure of discussion with counsel is or is not likely to cause adverse legal consequence. This hypertechnical reading of former RCW 42.30.110(l )(i) would effectively require elected officials to determine before discussing with counsel whether the discussion fell within the attorney/client safe harbor provision of the Open Public Meetings Act. A more sustainable interpretation of (3) is that the attorney/client privilege is not available when from an objective standard an agency should know before hand that the discussion is benign and will unlikely result in adverse consequences. A candid discussion with counsel of the legal risk and consequences of potential litigation is specifically contemplated by former RCW 42.30.110(1)(i). No such knowledge has been alleged. Therefore, we hold this discussion fell within the attorney/client privilege exception and the council members were not in violation of the Open Public Meetings Act for meeting in executive session.

Petitioners argue further that the council members "voted" in executive session when they did not block the city manager's decision to join the Initiative 695 lawsuit. Votes must be taken in public. RCW 42.30.060. However, the trial court clearly concluded no vote was taken. Verbatim Report of Proceedings at 69. We will affirm the trial court's factual conclusions so long as substantial evidence exists supporting the trial court's conclusions. Miller v. City of Tacoma, 138 Wash.2d 318, 323, 979 P.2d 429 (1999). We note the city manager had the authority and the discretionary spending power to join the lawsuit. Lakewood City Resolution No.1999-39. The city manager asked the council to go into executive session to discuss his decision to join the lawsuit, and to give the council members an opportunity to discuss with counsel the advantages, disadvantages, and risks of various courses of action. Substantial evidence supported the trial judge's conclusion that the Lakewood City Council did not vote as the term is used in the Open Public Meetings Act. In light of the substantial evidence supporting the trial court's conclusion that the council members conduct fell within the exception for attorney/client discussion and the implicit finding that no vote was taken, we find the council members took no prohibited action in executive session. See, e.g., Miller, 138 Wash.2d at 332,979 P.2d 429 (Madsen, J., concurring in part, dissenting in part).

We find the petition is legally insufficient. The meeting fell within the attorney/client privilege exception to the Open Public Meetings Act, former RCW 42.30.110(1)(i). This conversation was with counsel about actual litigation. Adverse consequence could have flowed from public knowledge of the preliminary discussions with counsel. We therefore affirm the trial judge's dismissal of the recall petition.

Affirmed.

SMITH, JOHNSON, IRELAND, BRIDGE, and OWENS, JJ., concur.

SANDERS, J. (dissenting).

This case proves the exception to the rule that "no one knows what goes on behind closed doors."¹ No doubt disclosure is sometimes embarrassing to public servants who would prefer to act behind a veil of secrecy for reasons of political expediency; however, secrecy is precisely what the Open Public Meetings Act (OPMA), chapter 42.30 RCW, was designed to prevent.

This is a recall petition case. But the majority's opinion is premised on a profoundly mistaken view of the OPMA, and undercuts the very foundation of the act.

At its heart this proceeding focuses on a narrow exception to the open meeting requirement of the OPMA. Under this exception governing bodies such as the Lakewood City Council may hold executive sessions only to (1) discuss litigation matters with legal counsel, (2) if, and only if, public knowledge of the discussion would likely result in adverse legal or financial consequences to the agency. I posit the majority's decision necessarily defeats the narrow statutory limits to this exception, thereby undermining the broad protections afforded the public by the OPMA. It invites secrecy in governance and shields public officials from public responsibility for their acts.

As detailed below, the facts alleged by petitioners establish not one, but three, prima facie violations: (1) the Lakewood City Council conducted an executive session absent a demonstrated likelihood of adverse legal or financial consequences if the same discussion were held in public; (2) unauthorized third persons were present at the executive session; and (3) the city council took "action" behind closed doors under the guise of an exception which only, at most, permits discussion with legal counsel.

Although my colleagues correctly articulate the standard to review recall matters, they err in its application. Factual and legal sufficiency of recall petitions is determined based on the facts as alleged by the petitioner. The ultimate truth of the charges is for the electorate to determine, not this court. RCW 29.82.023; Chandler v. Otto, 103 Wash.2d 268, 274, 693 P.2d 71 (1984). For a recall petition to reach the voters there need only be "a prima facie showing of misfeasance, malfeasance, or a violation of the oath of office." Id. As our laws expressly recognize the right of our fellow citizens to recall elected officials who betray their public trust, this court must be unyielding in the protection of that valued right.

I. FACTS

These city council members repaired to secret session from a public meeting on the evening of December 13, 1999. The city council went behind closed doors to discuss the city manager's proposal to use public resources to join politically motivated litigation to defeat Initiative 695 (I-695). Participants at this executive session included not only the full membership of the Lakewood City Council, but also City Attorney Daniel B. Heid and City Manager Scott Rohlfs. Other members of the public were barred from the meeting.

In secret the council discussed the pros and cons of challenging I-695, including potential alternatives. At the end of the session members of the council evidenced the support necessary to commit city resources to join the litigation, thus prompting the city manager to cause the municipality to intervene in pending litigation at taxpayer expense.

Subsequent to the December 13 executive session...