The Edmonds City Council Again Violates the Open Public Meetings Act.
Edmonds City Council First Executive Session of May 26th 2020
The City Council may meet in executive (closed) session but only for one of the reasons specified in and in accordance with procedures identified in RCW 42.30.110.
A personnel matter including a separation agreement is not specifically identified in RCW 42.30.110(1) and therefore is not a legally sufficient reason to meet in closed executive session.
The Council discussed the Finance Director Scott James, Separation Agreement in the closed executive session under the guise of potential litigation. When in fact, any potential litigation ceased to exist on May 25th, 2020, and the seven days from the date Mr. James signed the Separation Agreement, May 18th, 2020, thus waiving all of his rights to pursue any civil action against the City of Edmonds.
On May 26th, 2020 during agenda item (4) Council President Adrienne Fraley-Monillas moved to add an Executive Session regarding “potential litigation” per RCW 42.30.110(1)(i) before the Consent Agenda. The Council approved this motion unanimously. Mayor Mike Nelson announced the Council would convene into executive session regarding “potential litigation” per RCW 42.30.110(1)(i) for approximately 15 minutes.
At 7:04pm, Mayor Mike Nelson, Council President Adrienne Fraley- Monillas, and Councilmembers, Kristiana Johnson, Luke Distelhorst, Diane Buckshnis, Susan Paine and Laura Johnson met in the Jury meeting room with City Attorney Jeff Taraday, Sharon Cates.
The Mayor announced three time extensions and the Council reconvened into open public session at 8:08pm.
The Council meeting minutes and the video record provide, without any doubt, the topic of the executive session was not about potential litigation but instead the subject matter was about a personnel matter, the employee separation agreement of the Finance Director N. Scott James. There was no employment agreement or separation agreement attached to the agenda for public view. There was no introduction or discussion about the separation agreement prior to the Councilmembers taking the action to approve the agreement. From a public perspective, there was no indication of just what the council was discussing in paragraphs 4 and 24 of the separation agreement.
Upon reconvening the City Council approved the consent agenda and moved agenda 5.5 to agenda item 7, the Employee Separation Agreement. Councilmember Buckshnis moved and seconded by Councilmember Olson to remove paragraph 24 from the signed Separation Agreement, motion carried (4-3). Again, there was no employment agreement or separation agreement attached to the agenda. There was no introduction or discussion about the separation agreement prior to the Councilmembers taking the foregoing action.
Then Councilmember Olson moved, seconded by Councilmember Buckshnis “to improve the wording of section 4 as described in executive session”. Upon roll call, motion failed (3-4).
One thing that really stands out about the May 26, 2020 City Council Meeting is City Attorney Jeff Taraday’s intervention into the legislative process. When he did so, both Councilmembers Buckshnis and Olson had just raised their hands and stated that City Council had forgotten to make a Main Motion. Prior to providing procedural guidance or legal advice about the lack of a Main Motion, Mr. Taraday stated: “Before we vote on the Main Motion, Mr. Mayor, I just wanted to clarify the Clerk’s count on the motion to remove section 24 was four votes in favor and three against.”
The Video of the May 26th, 2020 Council Meeting clearly shows Council President Fraley-Monillas doing something off camera such as texting on her cell phone. City Attorney certainly and without doubt received a message prior to intervening into the meeting about the Council 4 to 3 vote on paragraph 24 No re-employment. One of the requirements of the Open Public Meetings Act is to be heard. If the City Council is using their cell phones or computers to communicate not all of the comments are being heard. This would be another violation of the Open Public Meetings Act.
Why would the City Attorney do this? If the City Attorney felt there was a question about the City Clerk’s count of a roll call vote, why did he only ask about one of the two counts? I do not recall ever seeing a City Attorney intervene to clarify a City Clerk’s count on a roll call vote in all the years I have closely followed City Government. The vote was obviously 4-3 yes. A roll call had been conducted. What possibly needed to be clarified?
Would he have asked for clarification if the City Clerk’s count on the motion to remove section 24 had been three votes in favor and four against?
The City has now made public disclosure of the Separation Agreement. So after the fact, the public can see what so sharply divided the City Council, including what exactly caused Section 24 to so divide our City Council.
Scott James had signed the Separation Agreement on May 18, 2020 – so there was no possibility that pending or potential litigation existed on May 26, 2020 when City Council entered into the Executive Session and discussed the Separation Agreement. The Separation Agreement contained a very detailed release, releasing the City from any and all claims and causes of action arising from or out of his employment or the termination thereof, a release intended to be all encompassing:
Release. James accepts the benefits contained in this Agreement in full satisfaction of all his rights and interests relating to his employment with and separation from the City and, in consideration therefore, James (including his heirs, successors, assigns and states) hereby releases the City, its affiliates, successors, predecessors, parent, subsidiaries, past and present officials, directors, managers, agents, representatives and employees (collectively, the "Released Parties") from any and all claims and causes of action arising from or out of his employment or the termination thereof, including but not limited to rights or causes of action arising under the laws of the State of Washington or the United States of America. This release specifically covers, but is not limited to, any claims of discrimination based on race, color, national origin, sex, marital status, age (including claims under the Age Discrimination in Employment Act), physical or mental disability, or other protected status under any federal, state, or local law, rule, or regulation; any contract, public policy and/or tort claims arising under federal, state, or local law; any claims arising under federal, state or local law; any claims for unpaid wages or benefits under City policies or wage laws; any contract or tort claims arising under federal, state, or local law based on promises made or allegedly made by the City to James; and any claims under any express or implied contract or legal restrictions on the City's right to terminate its employees. James releases the Released Parties from all such claims and promises not to assert any such claims or causes of action (the only exceptions being a suit filed solely to challenge the validity of this release under the ADEA; a claim for benefits under worker's compensation; or a suit based on acts or omissions occurring after James signs this separation agreement). James promises to hold harmless and indemnify the Released Parties from any and all actions, causes of action, claims or demands of every kind and nature whatsoever, relating to or arising out of his employment or its termination. This promise to hold harmless and indemnify includes the reasonable costs of legal counsel of the City's choosing. This release is intended to be all encompassing, and to fully resolve all matters and relations between the parties up to the date James signs this Agreement.
Mr. James signed the agreement on May 15th, 2020. He had 7 calendar days following this date to revoke his acceptance May 25th, 2020. On May 26th, 2020 there was no potential litigation and the Separation Agreement cannot be reviewed or negotiated in an Executive Session because it is not a specifically covered employment issue for the purpose of a closed Executive Session. Additionally, there may have been secret and unheard communications during the public meeting between a councilmember and the City Attorney.
Comments
RCW 42.56.150
Training—Local elected and statewide elected officials.
(1) Each local elected official and statewide elected official, and each person appointed to fill a vacancy in a local or statewide office, must complete a training course regarding the provisions of this chapter, and also chapter 40.14 RCW for records retention.
(2) Officials required to complete training under this section may complete their training before assuming office but must:
(a) Complete training no later than ninety days after the date the official either:
(i) Takes the oath of office, if the official is required to take an oath of office to assume his or her duties as a public official; or
(ii) Otherwise assumes his or her duties as a public official; and
(b) Complete refresher training at intervals of no more than four years for as long as he or she holds the office.
(3) Training must be consistent with the attorney general's model rules for compliance with the public records act.
(4) Training may be completed remotely with technology including but not limited to internet-based training.
[ 2014 c 66 § 3.]
NOTES:
Findings—2014 c 66: "The legislature finds that the rights of citizens to observe the actions of their public officials and to have timely access to public records are the underpinnings of democracy and are essential for meaningful citizen participation in the democratic process. All too often, however, violations of the requirements of the public records act and the open public meetings act by public officials and agencies result in citizens being denied this important information and materials to which they are legally entitled. Such violations are often the result of inadvertent error or a lack of knowledge on the part of officials and agencies regarding their legal duties to the public pursuant to these acts. Also, whether due to error or ignorance, violations of the public records act and open public meetings act are very costly for state and local governments, both in terms of litigation expenses and administrative costs. The legislature also finds that the implementation of simple, cost-effective training programs will greatly increase the likelihood that public officials and agencies will better serve the public by improving citizen access to public records and encouraging public participation in governmental deliberations. Such improvements in public service will, in turn, enhance the public's trust in its government and result in significant cost savings by reducing the number of violations of the public records act and open public meetings act." [ 2014 c 66 § 1.]
Short title—2014 c 66: "This act may be known and cited as the open government trainings act." [ 2014 c 66 § 6.]
Effective date—2014 c 66: "This act takes effect July 1, 2014." [ 2014 c 66 § 7.]
City would be better off with you just moving to hell (at a cost of $0 to all the other taxpayers), rather than your complaints that waste the taxpayer money. Fuck off to the bottom of the pit, you fool.