Defendant council members seek dismissal of suit alleging open meetings violations

Defense lawyers go after city attorney, former Councilman Mike Wallin

I have corrected some erroneous dates reported in the early version of this story.

The civil case against four Longview City Council members alleging breach of the state Open Public Meetings Act following their firing of City Manager Kris Swanson is getting complicated quickly.

In papers filed last week, the four council members and their two attorneys asked the court to dismiss the case and order the city to pay their legal costs. Their filings:

• Raised procedural and jurisdictional challenges, such as lack of signatures and addresses.

• Went after Longview City attorney Dana Gigler for what they claim was erroneous, biased and “massively contorted interpretations of the law.” 

• Asked that the four council members be dismissed as  defendants in their individual capacities and that the city be added as a defendant. The councilors could only have acted in their official capacity, according to the filings, and therefore should be entitled to legal defense at city expense. 

• Asked that sworn statements by council members Angie Wean, MaryAlice Wallis and Ruth Kendall — who all opposed Swanson’s firing and Duscha’s hiring — be barred as hearsay. The filings do not elaborate on the reasoning.

• Rejected the claim under the open meetings law that a quorum of the council met privately to make decisions.

Former City Councilman Mike Wallin and Longview citizens Thomas Samuels and John Melink filed the suit on March 20, naming council members Erik Halvorson, Keith Young, Mayor Spencer Boudreau and Mayor Pro Tem Kalei LaFave as as defendants.

The defense filings accuse Wallin, a real estate broker, of illegally acting as a lawyer. Individuals are allowed to represent themselves in court, but no one else. Wallin said Monday he is representing only himself and that Melink and Samuels — who are also not attorneys — are representing themselves.

The plaintiffs are seeking fines against the council foursome, reinstatement of Swanson and an investigation by the Cowlitz County Prosecutor’s office of alleged breaches of the Open Public Meetings Act  (OPMA) in how the group hired Jim Duscha, the city’s retired police chief, as an interim replacement.

An opening hearing in the case has been postponed twice and is now scheduled for 2 p.m. May 8.

The defendant council members are represented by attorneys Eric Carlson of Chehalis (representing Boudreau and LaFave) and  Nicholas Power of Friday Harbor (representing Young and Halvorson).

This whole affair has been an earthquake that has exposed a chasm-like fault on the council and the community: The rise of the Trumpist conservative right in opposition to the progressive Democrat and traditionally moderate Republican center.

Wallin, Samuels and Melink are expected to amend and add to their action, but for now the case centers largely on how Duscha was contracted and whether the council foursome violated the State Open Public Meetings Law. 

The  basis of the law is that public business must be conducted in public. While elected leaders can meet one-on-one to discuss official matters, they must take official “action” in public. 

Elected officials are barred from holding a series of meetings to arrive at a de facto decision that they merely rubber stamp in public. That’s called a “series meeting” and is illegal.  

The court’s determination in this case— if it gets that far —  may hinge on what constitutes an “action” and whether the plaintiffs can show convincing evidence that the council foursome engaged in an illegal series meeting by consulting one another in private through multiple phone calls, electronic messages or other means.

Without official council action or the knowledge of the three minority council members, Halvorson and LaFave negotiated a contract with Duscha along with city human resources staff, the three minority councilwomen have said in sworn statements.   Wallin, Melink and Samuels allege that this was a “blatant” violation of the OPMA because it was an action that “empowered”  LaFave and Halvorson to form a negotiating subcommittee.

Power counters: “It is not illegal for fewer than four council members (a quorum) to meet with human resources staff and create a (contract) draft as LaFave and Halvorson are alleged to have done,”  Power wrote to the court.

The council hired Duscha immediately after it terminated Swanson at a special meeting on March 13. On a 4-3 vote, the council then agreed to a contract with Duscha on March 21. The actions had the outward appearance of being rubber stamp decisions agreed to beforehand, leading to suspicions of collusion and cronyism. 

There was no prior public or council discussion of Duscha’s merits for the post — not even a presentation of qualifications or a resume — or just how the city should proceed after Swanson’s termination.

There’s little doubt that at least some council members were hunting for a replacement for Swanson well before firing her. Former City Manager Bob Gregory has said LaFave asked him on Jan. 8 whether he’d be interested in serving as interim manager, a request that he said caught him by surprise.

The new filings take shots at Gigler, the city attorney, with some sarcasm.

In a letter to Gigler submitted to the court, Power contends that she  “did a great disservice to the city” by “giving credence” to a provision in Swanson’s contract that requires a five-vote supermajority to fire her.  State law authorizes the council to act on four votes.

“You must know that such a supermajority clause is unlawful and cannot be enforced,” Power wrote.

Gigler has been the city’s attorney since last fall but has multiple years of practice in civil law — including with the Cowlitz County Prosecutor’s Office. 

Both Gigler and an attorney from the city’s pool insurer — the Washington Cities Insurance Authority (WCIA) — advised the council that it could be sued for breach of contract if only four members voted to fire Swanson. Indeed, Swanson is expected to sue the city on those grounds and others. The conflict between the contract and state law will need to be addressed.

Power also criticized Gigler for advising the city that state law indicates that city manager vacancies should be filled temporarily by other senior city administrators. (The law says the city it “may” hire from within; it does not use the more obligatory “shall.”) He cited her handling as evidence of bias and, in another document, said Gigler was a long-time ally of Swanson.

Power acknowledged that the council split put Gigler in an untenable ethical situation. She could not ethically dish out legal advice to competing sides of the council. 

Gigler, noting potential ethical conflicts, recused herself from advising the council when it fired Swanson on March 13. However, she inevitably did get drawn into the debate about about hiring Duscha instead of an in-house administrator, such as Ann Rivers, the assistant city manager. 

Gigler clearly hedged on this issue, stating “there’s just no case law”  to guide opinions on the force and intent of the law.

Power also criticized Gigler for advising the defendant council members that the city could not cover their legal expenses. The city was not — and still is not— named in the suit.  

The city’s insurance authority denied coverage to the four defendant council members because their alleged acts are “intentional” decisions — as opposed to accidental occurrences— that exposed the city to suit and damages. In addition, defense costs arising from alleged violations of the  Open Public Meetings Act specifically are excluded from coverage under the insurance authority’s policies.

The conflict arose as a result of last November’s general election, in which slightly more than a third of the electorate cast ballots. All three of the council’s majority bloc were  elected then, combining with Boudreau to create a four-member conservative bloc. The foursome has rejected bipartisan support for Swanson, concerns about Duscha’s lack of city manager experience, and pleas not to disrupt city government so swiftly after taking office.