Saturday, January 22, 2011

Control Over the Instrument We Have Created

On paper, Washington state is a bastion of open government. State law proclaims:

“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 so that they may retain control over the instruments they have created.” RCW 42.30.010.

It’s not always clear, though, that the spirit of this law has penetrated as far as the top left corner of the state.

For example, let’s look at how our County Council is dealing with the Order of Invalidity that the Growth Management Hearings Board imposed in December. This is a particularly appropriate topic because the Order of Invalidity is the state’s way of reminding Whatcom County that it is, in fact, subject to another state law that hasn’t found a firm footing this far northwest: the Growth Management Act.

In a nutshell, the Order of Invalidity tells Whatcom County that part of its Comprehensive Plan relating to rural areas is so egregiously out of compliance with the GMA that the County can’t allow property owners to vest development rights in the areas covered by that part of the plan. It also requires the County to show that its revised rural plan will not “substantially interfere” with the Growth Management Act’s goal of reducing sprawl. The County doesn’t have to show that its plan will eliminate sprawl – just that it won’t “substantially interfere” with the goal of “reducing” sprawl.

How is the County Council responding?

Not by informing the people of Whatcom County about how it intends to comply with state law.

Instead, the Council held a secret meeting – an emergency “executive session” – on January 4. Then it adopted an “emergency ordinance,” placed on the agenda and available to the public only a few hours before its January 11th meeting. The point of an “emergency” ordinance is that it requires no public notice or public hearing.

The Council majority apparently hasn’t read the part of the law that says that they don’t have “the right to decide what is good for the people to know and what is not good for them to know.” And because we are not informed, we have no input into the Council’s actions. On January 14, in a move that had never been the subject of any public discussion or public vote of the Council, the County filed a motion to “rescind” the Order of Invalidity.

Let’s think about that for a moment.

The Council is supposed to adopt a new rural plan that complies with state law by the end of March. When it does that, the Order of Invalidity will be lifted.

Now let’s think about the timeline for the motion that the County just filed. By the time all of the legal process that surrounds the County’s motion is completed and the Board has ruled on it, we’ll be pretty close to the end of March.

So, although the County Council isn’t talking to us about it, it seems pretty clear that the Council’s closed door meetings have led to a decision – or two. The Council can’t be planning to complete its rural plan in time to meet the March deadline. If it were, there would be no need to file that motion.

Or perhaps the Council wants to be able to adopt a plan that “substantially interferes” with the goal of reducing sprawl.

Or maybe it has both goals in mind – further delay and a sprawl-inducing rural plan.

Here’s an interesting question. When did the County Council decide to spend County resources to try to get rid of the Order of Invalidity, rather than deciding to focus on fixing its rural plan? It’s expensive to use County legal staff to appeal the Order, and the County will still have to revise its rural plan anyway

The Council has never discussed this issue in public, and it never took any vote in public. Will we ever find out what’s really going on?

Only if we “insist on remaining informed.”

Thanks to David Stalheim for letting me blog on his site. I asked him if he wanted to read my entries before I post them or if he’d rather be surprised. He responded: “Nothing would surprise me.”

So anything that I post will represent my views, and when my views diverge from the views of the Outside Man, I’m sure that he’ll let us know.

Jean Melious

Link to my comment letter to the County Council for its January 25 hearing on moratorium ordinances.


  1. Its an emergency... We can't figure out how to follow the law!

  2. Jean, thanks for the informative post.

    Many agree that Council has handled this issue poorly. If you had been elected and was serving on Council, what would you do at this point?

    What should Carl Weimer and Ken Mann do to communicate with their constituents?

    Have you spoken with either Carl or Ken?

  3. I will get all presumptuous and assert that if Jean had been elected, she would have not be late to the Executive Session on Jan 4th. (Like Tony Larson was... and I bore witness to his tardiness.)

    Also, the person who should be breathing the biggest sigh of relief that Jean was not elected is Ms Frakes (County Attorney). I was at that meeting, before it went it executive session, and while Ken Mann did question the necessity of going private, I think that the Q & A would have been profoundly different if Jean had been asking the questions... and the follow up questions.

    Ms. Frakes should be thanking her lucky stars that she doesn't have to field questions from Ms. Melious during Council meetings.

    The rest of us, didn't luck out so much.

  4. Anon 777, Carl and Ken both take open government seriously and are working in a difficult environment. Carl wasn't present for the January 4 Executive Session and did his best to make it clear that he thought that there should be a public discussion, as reported in the Herald. Ken raised the issue of open discussion as opposed to a closed meeting, but it is hard to insist on that when everybody else in the room is insisting on an executive session.

    My point wasn't to criticize Carl or Ken. To the contrary, the point is that Carl and Ken can be more effective when there are outside eyes watching, when there's publicity and discussion of what goes on in the Council, and when constituents are raising concerns (and not just Carl and Ken). If we want them to keep working for us, we have to support their efforts to do the right thing.

  5. Jean, it was not my intent to criticize Carl and Ken but rather to elicit your recommendations as to how they might communicate with the public. Certainly, we should continue to raise our concerns, which I believe we have on this issue. Having heard our concerns, what should Carl and Ken do now?

    What would you do - now - if you had been elected?

    Are Carl and Ken actually prevented from informing the public what expires in Executive Session? Can they at least provide a basic summary of Council's intent in fighting the Order of Invalidity? And whether Council plans to comply with the GMA?

    The attorney-client privilege may prevent the County attorney from disclosing this information; but does it prevent Carl and Ken (the client) from doing so?

    Again, I support Carl and Ken's efforts; but what can they do now to fulfill their obligation of informing us?

  6. Correction: "expires" should have been "transpires":

    "Are Carl and Ken actually prevented from informing the public what 'transpires' in Executive Session?"

  7. Well, to quote Apex, "I will get all presumptuous" and say what I might do. I would probably use tonight's hearing on "moratorium ordinances" as an opportunity to discuss and explore the Order of Invalidity, to the extent that such discussion didn't reveal any confidential information from the executive session(s) that the Council has held. (More on that below).

    I would at least say what's in my comment letter that I sent to the Council yesterday. (I think that I just posted a link to it at the end of the blog.)

    I might also try to say what's in David Stalheim's commment letter, which is better, and maybe he'll post it for those who are interested.

    And I would say that it's time to stop fighting and start planning.

    What transpires in executive session: Well, I'm not their lawyer, and they have to get their advice from their own lawyer. One lawyer has pointed out that the legality of disclosing information from executive session is unclear:

    "It is unclear what obligation members of the governing body or guests may have to maintain the confidentiality of the discussion held in executive session. Generally the disclosure of confidential information by a public official is illegal. RCW 42.20.070(4) prohibits release of confidential information. . But information exempt from disclosure (such as discussions held in executive session) is not necessarily the same as 'confidential information.'

    Under the Public Records Act, a public official is immune from liability in releaing records if the official acted in good faith in attempting to comply with the provisions of the Public Record Act No similar statutory immunity, however, is provided for public officials who disclose matters discussed in executive session."

    Scott A.W. Johnson, Stokes Lawsrence P.D., Wathington State's Open Public Meeting Act (Sept. 17, 2010).

  8. Jean, thanks for getting presumptuous. What specific advice do you have for those of us who support Carl and Ken and would like to assist them?

  9. In the short run, you can:

    Come to tonight's Council meeting and speak either at the Open Session or during the hearings on the two moratorium ordinances;

    Write to the Council;

    Write to the newspaper(s) -- Herald, Lynden Tribune, Northern Lights, Foothill Gazette;

    Come to future Council meetings, so Ken and Carl continue to know that they're not alone;

    Read and comment on Ken and Carl's blog and Ken's Whatcom County Facebook site;

    Continue to support those of us who support Ken and Carl, by reading this blog, spreading the word to your friends and neighbors, and commenting and providing blog ideas; and

    Keep an eye on Planning Commission. Remember, if the Council likes an ordinance that the Planning Commission recommends, the Council can adopt it without holding a public hearing. Since 7 out of 9 Planning Commissioners were appointed by this Council, the odds have significantly increased that the Council will receive ordinances that it likes.

    In the longer run -- work with the political party of your choice and Whatcom Conservation Voters to get some good people elected;

    and support Futurewise Whatcom, a local organization with statewide support and the mission of Getting Whatcom Planning.

  10. Jean,

    All that is well and good. I have written many times to elected officials in the past and have attended many meetings. I find those actions to be marginally useful.

    I believe an organization of concerned, active, dedicated, and focused citizens would be much more effective. Have you considered the possibility of starting such a group?

    If nothing else, have you considered arranging a meeting where those of us with like-minds who comment on these blogs might meet together to brain storm how to resolve these issues - separate from Futurewise and the political parties?

    If you decide to organize such a meeting, please let us know - either here on David's blog or another. I would be more than happy to assist, and I am confident many others would as well.


  11. @anon777

    "Are Carl and Ken actually prevented from informing the public what 'transpires' in Executive Session?"

    Disclaimer: not a lawyer.

    However, the meaning of "executive session" is consistent in both Sturgis and RONR (Robert's Rules)

    Sturgis: Executive Session (or Closed Session) is a meeting "the proceedings of which are confidential."

    RONR: A meeting or portion of a meeting "at which proceeding are secret."

    While I have no doubt about Jean Melious' sources about the law being unclear on the confidentiality of discussion in executive session, I am cheeky enough to stake a claim that when the County Council goes into Executive Session then everyone present during the session has a "reasonable expectation of privacy", and State law may be clearer on that matter.

    I am of the opinion that everyone present at a meeting in Executive Session has a reasonable expectation of privacy, and that all persons attending such a meeting have an obligation to keep confidential anything said in Executive Session. Provided, that is, that the conversation was otherwise lawful.

    An executive session doesn't seem to qualify as conferring a legal privilege of secrecy to the point where someone could admit to committing a crime or something.

    A person who doesn't think something should be discussed in executive session and is unwilling to adhere to the expectation of privacy should excuse themselves from the meeting. If a member of a group votes against going into executive session, and the majority votes otherwise, then that member is supposed to respect the privacy of the group of vote with his feet.

    (again, not a lawyer.)

  12. I would venture a guess that applications were filed with the county between the time of the executive session and the moratorium going into effect. Consider for a moment what industry someone works in and ask if information might have been disclosed after the executive session. As long as the Order of Invalidity stands, and is enforced, then it might not matter. It was a GOOD thing how the county was surprised by the order. A lot of good work went into getting that in place.

  13. Apexnerd, In the military there is no requirement to obey an unlawful order. In fact, one must NOT obey an unlawful order. And the code of military justice is pretty clear on what distinguishes lawful from unlawful orders.

    Similarly, the law is pretty clear on what should and should not be discussed in executive session. So I would say there is no requirement to keep secret that which never should have been kept secret in the first place.

    But I think there's a decorum and tradition in place that what happens in Vegas stays in Vegas.

  14. @anon36

    I absolutely agree with you on this matter. Well put.