07/02/2008: "#2 - Open Questions To Candidates"

The Island Guardian is sponsoring weekly questions to the county council candidates, and will publish their responses; and responses of the voters to their answers.

Question Number Two:
”Prior to the Charter, Council members were not allowed to communicate with each other in private. Do you support up to 3 council members meeting behind closed doors as now permitted?” And if not, will you work to change the Charter to return the prohibition against this?”
(Read Question Number One & Answers)

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Bruce R. Orchid

Your reference to members of public boards and commissioners is regulated by The Open Public Meetings act RCW 42.30, which prohibits members of public bodies from taking action outside a public, or open meeting, as well as causing them to make their deliberations in public. In a three member commissioner two members may not meet privately to discuss the business of their commission, as that might lead to decisions being made in private by a majority of that board. The rule becomes murky with a 6 member council, as 3 members are not a majority, and a three member vote does not pass motions.

In this case I would defer to the “Appearance of Fairness Doctrine”, just as a discussion by 3 members of a 6 member council does not violate state code, it might “appear” that 3 members meeting in private could be discussing issues that might lead to a conclusion, and a vote. To be paranoid, or careful, as we should, Council members 1, 2, and 3 could meet to discuss an issue, then Council members 2,and 3 could invite council member 4 for further discussion on the same issue. To me, this would be a violation of the Appearance of Fairness doctrine, as it would appear to me that now a majority of the council has met to discuss an issue(s).

I do not like it! When I served as a County Commissioner with Doug Corliss, Tom Cowan, and then Bill LaPorte, we were very careful about this issue. Sure, Tom and I would ride the ferry and talk about our kids basketball teams, or other things, but if confronted by the press, as we were, remember Paul Gotleib?, or the public, (we never were), we would invite them to join our conversation and continue talking about our private lives.

When interviewed by Freeholders regarding, amongst other things, the size of the council, I suggested an odd number of positions, 5 or more likely 7, to avoid unbreakable tie votes, as well as creating an atmosphere of complete fairness. I do think the Council should talk about this publicly, seek council, and then seek to change the policy. I am in favor of open and fair governance, and would respect any and all public rules or regulations which govern that issue. -Bruce R. Orchid

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Alan Lichter

This is an interesting question with a built-in bias, particularly that phrase "behind closed doors," implying, as it does, something malign and menacing. I don't remember meeting with other colleagues behind closed doors, but I have appreciated the freedom, given by the Charter, to have informal conversations with one or two of my colleagues. It's a great way to stretch one's views and thinking, which are sometimes overly narrow or limited.

Since I've only witnessed benefits in communication and policy-making from this element in our Charter, I see no reason to make any changes. - Alan Lichter

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Gordy Petersen

I believe in open government. The “Open Meetings Act” disallows actions where a majority of members of any governing body can meet and make deals in secret. When we were governed under the 3 Commissioner system 2 members could not meet because 2 constituted a majority. Therefore all meetings were public.

The Charter can only be changed by a vote of the people. The Council can propose this to the people or the people can do it through the initiative process. Either way I am not sure that changing the Charter would override State law on this issue unless we were to go back to a 3 member Council.

The Charter sets up a situation where the majority is 4. This means that 3 members can meet and conduct business out of the public view. This has pro’s and con’s.

This can be beneficial to getting business done in subcommittees of 3 or less. This also allows Council members to engage in private conversations about County business without breaking the law.

The downside is that Council members can go behind closed doors to promote a hidden agenda. This has happened for example when 3 or more members in the majority agree on an issue and wish to steamroll over the others. This eliminates public debate and is not ethical in my opinion. It is also not respectful to the Council members in the minority.

This is why it is so important to elect people that are committed to open government. If elected I will make open government a priority. I am against backroom deals between council members. County business should be out in the open for all to see. -Gordy Petersen

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Howard Rosenfeld

SHORT ANSWER: Prior to the Charter, there were three commissioners, where two was a quorum. So, two members talking to each other constituted a meeting that was supposed to be public. That is why they weren’t allowed to talk to each other outside of meetings. Under the current Charter there are six councilmembers. Up to three councilmembers, four being a quorum, can talk to each other under State law before it becomes a public meeting. I fail to see the advantage of wanting to restrict the legislative body here in San Juan County beyond what applies to the other 38 counties in the State.

LONG ANSWER: The main reason the freeholders chose six councilmembers is because it fit the legislative districts so well. A side benefit, mentioned at the time, was there could be subcommittees of up to three, because up to three could talk to each other outside of a public meeting. The Public Disclosure Commission (PDC) allows this. The Municipal Research and Service Center (MRSC) lawyer’s rulings, one as recently as two weeks ago, which I requested, supports the fact that these are not public meetings. Amending the Charter maybe could require subcommittee meetings be public. A simple vote of the Council could change our rules, should we want to. Or, each subcommittee could decide to open a meeting(s) to the public on its own.

What would the rules be? Who and how much time to notify? Would the meeting need to be recorded or have notes taken? Would the public have a right to comment? Meanwhile, it would still be legal for up to three councilmembers to talk, discuss, plot, connive, depending on your point of view, in private under State law.

Subcommittees make recommendations to the Council. The Council makes decisions. As long as decisions are made in public sessions with the required public notice, and time for public comment, we comply with State, Charter and Council rules. The current Council has made it a priority to make our full meetings as public and available for viewing as possible. As Chair, I have made our Monday meetings more of a productive work session for open, public discussion of issues. Public access and public comment is allowed as much as possible, as typically we’re not as pressed for time as with the Tuesday meetings. We’ve worked to get agendas out as early as possible and available online. We’re also working toward streaming meetings by agenda item, real-time streaming of meetings, and teleconferencing, as fast as the budget allows.

This question became an issue when Sharon Kavisto, of sanjuanislander.com, wanted to attend Stormwater Subcommittee meetings. She had to be asked to leave on two occasions. I’m on that subcommittee (to draft a stormwater funding ordinance) and we’ve been meeting since last November. Even our colleagues on the Council are asking what’s taking so long? Well, it’s been a case of the more we learned, the more questions arose. We’ve even approached the possibility of changing the underlying stormwater regulations, something not originally anticipated. However, we’re getting close and hope to go public with a draft-funding ordinance toward the end of July. Could we have done better if we had opened meetings up to the public? My belief is that the process would have been more constrained and difficult. With public comment allowed it could’ve become adversarial. In the end we have to ask where is the public good? Extralegal openness or legal effectiveness? -Howard Rosenfeld

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Lisa Guard

The question was asked: Do I support three council members meeting behind closed doors as now permitted? I do not oppose council members meeting privately so long as they follow the laws of the charter. The previous Board of County Commissioners was mandated by state law disallowing private meetings. I do think that “meeting” should be clarified; as stated in your question it seems ominous and delivers a negative connotation. Where as in Mr. Webster “meeting” is defined as: 1. A coming together; assembly. 2. A place where things join; junction. This definition sounds productive, thus positive in my mind. The ability to make clarifications leads to better understanding of topics. This process ultimately helps the council work more effectively together. -Lisa Guard

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Fay Chaffee

Prior to the Charter when there was a three-member Board of County Commissioners, any two Commissioners formed a quorum, so their meeting would have constituted a majority, which was clearly prohibited outside of public meetings. This is why no two BOCC members could meet “behind closed doors.”

Under the Charter, however, a quorum consists of four Council Members, so no action can be taken in a meeting of two or three members.

I believe in open government, no behind-closed-doors actions, and no action without proper public notice and input. Some of the issues facing the County today are very complicated, many-sided, and require a clear understanding by the legislative body. I believe that informal meetings between two or three Council members can be very beneficial in terms of understanding the issue at hand, so long as absolutely no action is taken. Smaller, casual meetings can be very helpful to Council members in terms of appreciating and gaining knowledge of all aspects of some of the issues.

Meetings of less than a quorum are not prohibited by the Charter, and do not lessen the importance of public meetings, but rather make the public meetings more effective and meaningful. -Fay Chaffee

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Richard Fralick

I have always been and continue to be a strong proponent of the Open Meetings Act. I agree that "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).

I believe that all meetings of all established committees or sub-committees formally sanctioned or established by the county council should be open to the public unless specifically excluded by the Open Meetings Act. It makes no difference if up to 3 council members are present; the requirement should be universally applied. The county council can establish this requirement by ordinance and should do so. There is no need to change the Charter to make this happen.

I have worked on and observed a number of public boards subject to the Open Meetings Act. My experience has been that boards where 2 or 3 board members do not constitute a quorum and thus can have informal discussions amongst themselves (as compared to the formal process described in the previous paragraph) work better than those where there is no opportunity for such an exchange. Creative thinking and consensus building often result from this process. The opportunity for informal exchange among council members in groups less than a quorum is one of the strengths of the Charter. As a member of the Board of Freeholders who wrote the Charter, I know we specifically saw this as a desired outcome and I would not seek to eliminate it by amending the Charter. - Richard Fralick

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Daniel Miller
I do not support this practice of allowing up to three council members to meet together in private and discussing policy. If I am elected I will work return the Prohibition that used to be in place. - Daniel Miller

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Lovel Pratt

Prior to the Charter, Council members were not allowed to communicate with each other in private. Do you support up to 3 council members meeting behind closed doors as now permitted? And if not, will you work to change the Charter to return the prohibition against this?

Section 2.40(3) of the Charter states: “A majority of the Legislative Body shall constitute a quorum at all meetings. Unless otherwise provided, action of the Legislative Body shall require the affirmative vote of four (4) members.”

I support the Charter provision that at least four Council members must vote for any Council action. This requirement was included in the Charter so that decisions would always be made by Council members from at least two islands. Given that four council members (a majority) constitutes a quorum, it is my understanding that State law, not the SJC Charter, allows for 1-3 Council members to meet together without that meeting being subject to the Open Public Meetings Act, with the following provisions regarding subcommittees (from Pat Mason, Senior Legal Consultant, Municipal Research and Services Center of WA dated 6-13-08 in a reply to SJC staff and distributed at the council/staff work session on Monday June 23rd):

If the subcommittee is less than a quorum of the council, then the subcommittee is only subject to the Open Public Meetings Act in one of three circumstances. The subcommittee is subject to the OPMA when it: 1) acts on behalf of the governing body, 2) conducts hearings, or 3) or takes public testimony or comment. A subcommittee is considered to “act on behalf of” when it has been given actual or de facto decision-making authority on behalf of the full council.

It is my understanding that the Charter includes six Council members instead of the former three member Commission specifically to provide both appropriate geographical and population based representation and so that Council members could work on subcommittees. I support the intention of the Charter to provide opportunities for greater efficiencies in addressing county issues through subcommittees, with recommendations then being made by the subcommittees to the full council. If elected, I would encourage the consistent inclusion of public participation with the full council when subcommittee recommendations are made.

If subcommittee meetings are seen as meetings “behind closed doors”, I would also, if elected, investigate whether it would be appropriate for subcommittee meetings to be open for the public/press to observe. If elected, I would work to find the appropriate balance between the requirements of the Open Public Meetings Act that all council deliberations and actions be done openly, and the opportunity for greater efficiencies through the work of subcommittees.

In addition, there are ‘meetings’ that can take place via email and also sequential one-on-one conversations that are subject to the Open Public Meetings Act. My nine years as a SJC Planning Commissioner has given me an extensive education about and experience with the Open Public Meetings Act. If elected I will uphold the laws of the county, state and federal government, including the Open Public Meetings Act, as required by my oath of office. I will also encourage regular education about the Open Public Meetings Act for all county advisory committees, subcommittees, commissions, and boards. - Lovel Pratt