Judge orders Longview to pay councilors' legal fees in open meetings lawsuit

Plaintiffs fined for minor procedural violations, but allegations of council wrongdoing will go forward for now

A  judge Wednesday ordered the city of Longview to pay the legal costs of four city council members who have been sued for allegedly violating the state Open Public Meetings Act in March.

Pacific County Superior Court Judge Donald Richter also ordered the three plaintiffs to pay $500 each for procedural violations — in this case, for failing to provide their individual addresses when they filed the suit.

Councilman Erik Halvorson, one of the defendant council members in the case, issued a statement later Wednesday:  "The case was seen for what it is. This is a major victory and a step forward to this being resolved.”

That seems to overstate the case.  Richter specifically said he was not dismissing any allegations at this point, even though an attorney for defendant council members Spencer Boudreau and Kalei LaFave called the suit “baseless” and without evidence.

“I’m not dismissing anything at this point,” said Richter, who his handling the case.

All Cowlitz Superior Court judges have recused themselves because the defendants and plaintiffs are well known in the community.

“While our complaint is not against the City of Longview or its residents, we recognize the court’s inclusion of the city as a matter of formality in this process is beyond our control,”  Mike Wallin, of the three plaintiffs in the case, said in a prepared statement 

"It does strike us as a gross misuse of taxpayer funds for the defendants to have their legal costs covered like this, so we have great hope the four defendant council members will accept responsibility for their wrongdoings before the taxpayers are forced to absorb the cost of their defense. 

“Nonetheless, and if necessary, we very much look forward to the opportunity to present our growing body of evidence to the court that the defendants have blatantly and repeatedly violated the OPMA,”  said Wallin, a former city councilman.

Wednesday’s hearing was held through a video conference. Richter decided two principal matters. He added  — or “joined”  —   the city as a defendant and ordered that it pay  the legal costs of defending the council members.

The city’s liability insurer has declined to cover those costs, stating that the allegations arose from intentional acts on the part of the council members. So it was not clear Wednesday evening where the city will find the money.  

The three plaintiffs — Wallin and Longview citizens John Melink and Thomas Samuels — sued the council members individually but did not include the city in their action. 

Nick Power, the San Juan Island attorney representing Councilman Halvorson and Keith Young, told Richter that the defendant council members were acting in their official public capacity and should get defense at public expense.

He acknowledged that fines for OPMA violations can be issued against public officials individually. Nevertheless, he said, “It is absolutely inappropriate for citizens who get a paltry stipend for serving on the council should have to shoulder what are going to be significant legal expenses. So we'd ask for the court's assistance.”

The council foursome has been considering voting to get the city to pay their legal fees. By ordering the city to pay, Power said, Richter could remove the "veneer of self-dealing” the council would face.

Judge Richter told both Power and Eric Carlson (the lawyer for LaFave and Boudreau) that he would review their proposed fees. 

“This is not a blank check. The fees have to be reasonable,” he said.

The case grows out of the council foursome’s controversial March 13 vote to fire City Manager Kris Swanson without cause and appoint former city police chief Jim Duscha as the interim manager. Specifically, they say the defendants —  without the knowledge of the public or other three other council members —  appointed an illegal subcommittee to negotiate a work contract with Duscha.

The hearing had been delayed twice before due to court administrative miscues. The  plaintiffs were expecting to withdraw their motion for  “injunctive relief,” which sought the restoration of Swanson to her position.

However, they expect to modify their case to add further allegations of OPMA violations. They say these will include evidence from Jan. 25 phone calls and texts that the foursome colluded to call an executive session to discredit Swanson. They blamed her for a clerical error someone else committed.

Swanson was hired last month as Battle Ground’s interim city manager and no longer seeks reinstatement in Longview. She is, however, seeking damages from Longview for breach of contract and civil rights violations.

If the plaintiffs carry through on their intent, a long process of discovery would proceed a trial. In the meantime, the two sides could attempt to negotiate a settlement. The next court hearing has not been scheduled.

Melink, Wallin and Samuels had been representing themselves and had hired a lawyer recently. They appeared without one during Wednesday’s hearing and told Richter they didn’t understand they each had to provide their home addresses in their filing. They listed only Wallin’s business address for sake of convenience only.

Richter didn’t accept the excuse.

“You are obligated to understand the rules and get legal advice to make sure you follow the rules and procedures,” he said.

“We do regret the mistake and error of not including all three of us plaintiff’s mailing addresses in our initial court filings,” Wallin said. “ Our intent was simply to offer ease and convenience to the court clerk. We will immediately comply with the court’s order to provide all contact information. We will immediately pay our court fines for this error.” 

The three $500 fines must be paid within 60 days.