Longview removed from open meetings suit, but city will pay defense costs anyway
Judge Donald Richter also confirms that complaints against four council members still stand
A judge Tuesday made it clear he has not dismissed any complaints that four Longview council members violated the state Open Public Meetings Act when they fired City Manager Kris Swanson and replaced her with Jim Duscha in March.
That is significant because some of the defending council members have erroneously been claiming in public that the judge had let them off the hook last month.
Pacific County Superior Court Judge Donald J. Richter on Tuesday also reversed his May 8 ruling and removed the city as a defendant in the civil lawsuit against the four councilors. He found that the city had not been properly “served” —legally notified — by the defense when it requested that that the city be added to the suit.
Richter’s action eliminates his order for the city to reimburse the council members for their legal defense costs in the case.
The decision is moot. Clearly expecting Richter’s ruling, the council foursome voted last week to have the city pay for members’ defense.
They did so despite objections from the public and three minority council members that the foursome had not acted “in good faith” — a state requirement to be eligible for coverage of their legal costs — when they hired Duscha.
Still, Richter’s reversal has symbolic significance. The plaintiffs did not want taxpayers stuck with the cost of defending alleged illegal council behavior, said their attorney, Michelle Earl-Hubbard of Seattle.
So now it is the council members themselves, through their own vote, who are causing taxpayers to foot the bill, not the courts.
The suit does not name the city as a defendant and sues the council members individually.
On May 8, Richter agreed with defense lawyers that their clients were acting in an official capacity and that the city needed to be “joined” to the suit and should pay the defendants legal costs.
Tuesday, the defense also argued that the council members could only reinstate Swanson (one of the demands of the suit, since dropped) in their official roles.
Nevertheless, Richter Tuesday reversed his May 8 decision on procedural grounds, noting that he must follow the law.
Tuesday’s hearing, held in Cowlitz Superior Court, was held to clarify Richter’s May 8 ruling and to debate the city of Longview’s role in the case. Defense and plaintiff lawyers had submitted conflicting versions of a final May 8 order for Richter to sign.
Former Longview Councilman Mike Wallin and citizens John Melink and Thomas Samuels are suing council members Kalei LaFave, Keith Young, Erik Halvorson and Mayor Spencer Boudreau for alleged OPMA violations.
The allegations are that the four majority council members conducted “serial” meetings through phone calls, texts and other means to make de facto decisions. The OPMA forbids that, and it says public officials who violate the law can be held personally liable.
The council members have denied meeting illegally.
Tuesday’s 75-minute hearing was often confusing and occasionally seemed to befuddle the judge and some of the lawyers. Four attorneys participated in the call — Jeff Myers, a contract attorney for the city of Longview, Michelle Earl-Hubbard for the plaintiffs, and Nick Power and Eric Carlson for the defendants.
Despite the drawn-out debate over whether the city was properly served, there was only hint of tension. It came when Earl-Hubbard objected to a defense assertion that Richter had ruled on May 8 that the suit was “frivolous and advanced for an improper purpose.”
“You did not (make that finding) your honor,” said Earl-Hubbard, whom the plaintiffs hired in the last month or so.
Richter agreed. “I did not dismiss any complaint” on May 8, the burly, bushy-bearded jurist said.
Richter several times interrupted the attorneys when they started touching on the real substance of the case: whether illegal meetings took place. That will come later.
Earl-Hubbard repeated several times that the plaintiffs have “ample” evidence of multiple OPMA violations that they will include in a future, amended filing in the case. Hubbard is one of the state’s legal experts in open meetings law.
It’s likely that this case will go on for months and that it will cost the city a tidy sum.
The origins of the saga date from the council’s 4-3 vote to tap Duscha as interim manager immediately after firing Swanson “without cause” on March 13. The suddenness of the move — which occurred without a resume, application or discussion of the retired police chief’s fitness for the job — led to immediate complaints of secrecy, OPMA violations and cronyism.
Duscha, who retired as Longview police chief in 2020, is a longtime friend and ally of councilwoman LaFave. She is the one who introduced the motion to hire him.
LaFave and Councilman Halvorson had been stating in public that Richter on May 8 found them innocent of OPMA violations.
They and their cadre of right-wing supporters also continue to assert that the lawsuit is frivolous. They claim the suit is meant to punish the council majority over its actions.
This lawsuit is not frivolous. There is enough secrecy, duplicity, and cronyism in this case to warrant the type of scrutiny that only a court can deliver.
The public needs to know what happened behind the scenes and has a right to know how the council arrived at such major, controversial and disruptive decisions.
“The people of this state do not yield their sovereignty to the agencies which serve them,” the preamble to the OPMA reads. “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.”
I’m not a lawyer and can’t predict the outcome of this case, but some things are clear already.
Young, LaFave and Halvorson campaigned last fall on a platform on improving transparency. They have been anything but transparent and violated the spirit of the law, if not its letter.
Their finding last week that they acted in good faith is maddening.
They were warned that their actions could result in lawsuits and personal liability for any OPMA violations. A broad array of past city officials counseled them against taking rash action.
Even before she was sworn in to office Jan. 8, LaFave asked former city manager Bob Gregory if he would serve as interim manager. It seems obvious that LaFave and her allies had cooked up this “coup” — as minority council members have called it — way back to last fall’s election season, despite repeatedly denying it.
Before this political hurricane arose in early February, Young acknowledged in a Facebook post that he had campaigned on a pledge for openness but that sometimes secrecy is needed.
Yes, it is. But replacing a city manager — perhaps the most important decision a council can make — shouldn’t be one of them. And certainly the three newbies to the council —LaFave, Halvorson and Young, all elected in November — should not have proceeded privately without the advice of the three veteran minority councilwomen.
Young has been uncooperative with public records requests for his phone, email and computer records of conversations with other council members, according to Wallin.
Halvorson acknowledged in court filings that he, LaFave and Young exchanged emails about approaching Duscha, a longtime ally and friend of LaFave, for the interim position. That’s one member short of a majority of the council. So, perhaps, those communications can’t be construed as holding an illegal “serial meeting” under the OPMA.
However, I have a hard time believing that Boudreau was unaware of their intent. And the threesome must surely have known he would support them. (Boudreau was the only council member to oppose Swanson’s appointment by the previous council in 2022. He went along with the March termination vote quietly and without questions or objection.)
Plaintiffs Wallin and Samuels have amassed public records that show that the four council defendants exchanged about 30 phone calls and emails on Jan. 25, when they called an emergency executive session to call Swanson to account for a niggling error that was not her fault.
The council majority’s action has led to a rash of resignations of top administrators, potentially costly damage claims by Swanson, severance payments costing $150,000 to $200,000 for two other execiutive level administrators and continuing friction on the City Council.
Finding out what led to this unjustified chaos certainly is not frivolous.
For the good of our city, I can’t thank you enough for pursuing this important issue. Many of us would like to know the answers and because of you someday we may ,thank you Andre.
Cha-Ching…