Legal opinion stalls attempt to saddle public with council members' legal costs

Attorney cites concerns about "blank checks," claims of innocence

This story has been updated to include concerns by Longview City Councilwoman Ruth Kendall about chaotic council behavior.

Attempts to get Longview taxpayers to pay legal costs for four council members accused of breaking the state open meetings law have been postponed.

Longview’s contract attorney Jeff Myers raised concerns about resolutions proposed by Councilmen Keith Young and Erik Halvorson that were scheduled to be considered at Thursday’s (April 25) council meeting.

Myers proposed a substitute resolution and noted concerns about those pitched by Halvorson and Young.

His opinion is unlikely to thwart the defendant council members’ attempts to get attorneys at public expense, but it could control the costs and prevent the council from asserting legal claims that are at least premature or could turn out to be false.

Halvorson himself asked Wednesday that the resolution be withdrawn in light of Myers’ evaluation.

Nevertheless, the way the resolutions made it on the council’s Thursday agenda on the first place, only to be withdrawn the day before, is further evidence of how chaotically the new council is conducting its business.

Myers, a Tumwater-based lawyer, is advising the city in connection with a lawsuit filed against the four council members who voted on March 13 to fire City Manager Kris Swanson and hire Jim Duscha as an interim city manager.

Among the concerns Myers raises:

1. The resolutions could be a “blank check” that could enable the defendant council members to run up legal costs and hire any number of attorneys at any cost. 

2. They assert that the council members acted in “good faith” and did not violate the state Open Public Meetings Act (OPMA) when they fired Swanson and hired Duscha.

The problem with this is that the lawsuit claims that the defendant council members violated the OPMA and acted in bad faith. There’s something of a chicken-and-egg aspect to this. Yet it’s for a judge — not the accused council members — to declare the defendants innocent or guilty.

3. They wrongly claim that council has legislative immunity for its actions. Myers writes that the lawsuit “does not present a legislative immunity question.  (The) OPMA expressly provides personal liability for penalties to be imposed on council members who knowingly violate the OPMA. … The decision to have an illegal meeting in violation of OPMA is not legislative in nature.”

4. They wrongly imply “that any judgment would be paid by the city,” contrary to state law.

Myers has submitted a shorter resolution that would allow Duscha, in consolation with city attorneys,  to hire one a lawyer to represent all four council members jointly “at a reasonable hourly rate, not to exceed $425 an hour.”

Myers’ version strips out the resolutions’ flat assertions of innocence. It hedges instead, stating that the “the council finds that the acts … of the council defendants were, or in good faith purported to be, within the scope of his or her official duties” (my italics).

Myers’ version would allow the city to pay the defendants’ legal costs to date, subject to review by the city’s legal counsel.

It was not immediately clear how soon the issue will be brought back to the council.

Myers, of the Tumwater law firm of Law, Lyman,  Daniel, Kamerrer and Bogdanovich, is handling legal review because the city’s staff attorney, Dana Gigler, has recused herself from the case on ethical grounds. He has been retained at the request of Gigler and Duscha to advise the city about the OPMA litigation.

Duscha did not immediately requests for comment left at this office. Halvorson referred questions to his lawyer, who did not respond.

Councilwoman Ruth Kendall supported Myers’ advice: “He does not want the resolutions) to say whether (OPMS violations) occurred. That’s something for the judge to decide.”

Kendall is a member of the three-member council minority that defended Swanson and opposed Duscha’s hiring. By Wednesday afternoon, she said she was exasperated by the procedural chaos that is afflicting the council.

She noted that resolutions are supposed undergo staff review prior to being placed on council agendas to make sure they are accurate and legal. In this case, Mayor Spencer Boudreau told Duscha to put the resolutions on Thursday’s agenda despite Myers’ concerns about them.

Kendall also pointed to confusion over Thursday’s planned workshop with the Cowlitz County commissioners. It is to discuss transferring the city’s homeless program back to the county. The discussion was supposed to be part of the regular council meeting but got moved ahead of it.

Only commissioner Rick Dahl will attend the half-hour session, and city staff will not make a background presentation because it needs at least two hours to cover the topic adequately, Kendall said.

She also noted that the council needleeslyh haggled over the order of its agenda during its April 11 meeting, an issue that should have been settled beforehand.

Kendall noted that delays and changing schedules at the last minute confuses the public and discourages community involvement.

“That’s not openness or transparency,” she said, a slap at the new council members’ campaign promises to improve both.

In the lawsuit, former City Councilman Mike Wallin and Longview citizens John Melink and Thomas Samuels allege that members of the council’s four-member bloc violated the OPMA in how they hired and negotiated with Duscha.

They say they will bring further OPMA allegations. These include one that telephone and text message records show the council foursome conspired on Jan. 25 to hold a closed executive session to discredit Swanson over someone else’s clerical error on a legislative funding request.

Resolutions “require them to truly and honestly attest that they have engaged in good faith,” Samuels said. Myers “is holding them accountable for what they are declaring in that resolution, and they can’t honestly claim that they acted in good faith and they can’t go through with this.”

The four defendant council members are Kalei LaFave,  Halvorson, Young and Mayor Boudreau. They are now represented by two separate attorneys, who are asking the court to force the city to pay for their legal defense. They have denied acting in bad faith or violating the OPMA.

The law bars elected officials from holding a series of private, one-on-one meetings to make decisions or hold discussions. These are called “serial” meetings, and they are illegal.

Myers’ advice is in accord with his April 9  opinion about these matters, which I reported on previously. His latest remarks appear as notes keyed to copies of Halvorson and Young’s resolution.

The city is not a defendant in the lawsuit. Its pool insurer, the Washington Cities Insurance Authority, has declined legal coverage, saying it does not cover legal costs arising from “intentional” acts or alleged “willful violations” of the state Open Public Meetings Act. .