Longview councilors seek to defend themselves from suit at public expense

City's insurance provider had denied coverage of legal fees for 'intentional acts’ and alleged ‘bad faith’ decisions

Longview City Council members sued for alleged violations of the state open meetings law will ask the city to foot the bill for their attorney fees — despite a decision by the city’s insurer to deny them coverage for legal expenses.

At the April 25 council meeting, Councilmen Erik Halvorson and Keith Young are expected to seek approval of two resolutions — numbers 2491 and 2492 —  under which the city could “indemnify” them and their two allied council members for lawyers’ fees, damages and other costs arising from the case.

This may sound like the fox is getting the keys to the henhouse.  But apparently it is legal, at least according to an opinion written by a private attorney who is advising the city.

The April 9 opinion says that council members are eligible for city-paid legal defense if the council itself finds that their actions were taken in “good faith” — a term that generally means '“honest dealing” — and were within the scope of their official duties.

It also concludes that the four defendant council members do not have to recuse themselves from voting on the resolutions. That likely would guarantee passage of the measures on another 4-3 vote, the same tally that has characterized council divisions during the last two months.

The case and the resolutions stem from the council majority’s March 13 decisions to fire City Manager Kris Swanson and appoint Jim Duscha — the city’s retired police chief — as interim city manager.

The lawsuit alleges that the four-member council majority violated the state Open Meetings Act( OPMA) and knowingly made decisions in in bad faith.

The legal opinion was requested by Duscha and city attorney Dana Gigler. It was written by attorney Jeffrey Myers of the Tumwater, Wash., law firm of Law, Lyman, Daniel, Kamerrer and Bogdanovich. The firm has previously represented the city in other civil matters.

Gigler has recused herself from advising the city in the case because she can’t ethically represent both the four council members and the three-member minority that has opposed the majority’s actions.

The city itself is not now a defendant in the open meetings court case.

Under the OPMA, elected leaders can meet one-on-one to discuss official matters, but they must take official “action” in public.  They are barred from holding a series of private meetings to arrive at a de facto decision that they merely rubber stamp in public. The lawsuit alleges, in part, that the council majority engaged in these so-called “serial meetings.”

The prospect that the council members could vote themselves legal representation at taxpayer expense is exasperating critics of the council’s March 13 votes to fire Swanson and appoint Duscha.

Why should the public pay to defend officials who knowingly acted outside the law? asks John Melink of Longview.

He is one of three plaintiffs who have taken Halvorson, Young, Councilwoman Kalei LaFave and Mayor Spencer Boudreau to court for allegedly violating the OPMA in how they bargained with and hired Duscha.

“I want to apply a full-court press” of public opinion against the council, said Melink, who gave me a copy of the documents.

Mayor Boudreau did not respond to requests for comment Tuesday afternoon. Nick Power, attorney for Halvorson, referred me to his previous court filings, which I reported on in an April 9 post and briefly incorporated here.  (See “Defendant council members seek dismissal of suit alleging open meetings violations.”)

Resolution 2492 says, in part: “It is critical that the city of Longview supports its officials in carrying out their duties without undue financial burden, thereby ensuring that actions taken in good faith and within the scope of their officials capacities … are defended and indemnified.”

It’s common for public agencies to pay the legal expenses of its leaders when they are sued by outsiders for actions taken in their official roles. However, the city’s insurance pool provider — the Washington Cities Insurance Authority (WCIA) — has declined to pay for the council members’ attorney fees. It says it does not cover legal costs arising from “intentional” acts or alleged “willful violations” of the state Open Public Meetings Act. 

Attorneys for the defendant council members have asked the court to include the city as a defendant and order it to pay their defense costs. Defense lawyers also have asserted that the council members fired Swanson and hired Duscha in their official capacity without violating the OPMA.

The resolutions raise an ethical and legal conflict: Should the four council defendants abstain from voting on the resolutions?

On the one hand, The Code of Ethics for Municipal Officers says municipal officers may not vote to approve a contract if he/she derives a beneficial interest from that contract, Myers writes in his April 9 legal opinion for the city.

However, Myers concluded that the council foursome do not need to recuse themselves. He relied on the Washington State Supreme Court’s 2005 Olsen ruling involving a small port on Hood Canal. 

A port commissioner there was subject to a recall. So she voted to indemnify herself against the legal costs of defending herself from the recall. Her critics sued, contending that she should have abstained. Her vote violated the OPMA because it benefitted her personally, they claimed.

 The court disagreed, Myers said.

“The court pointed to express statutory provisions authorizing the port to retain an attorney to defend suits against its officers and to indemnify them,” Myers says. 

The Supreme Court itself  did some legal hairsplitting, saying: “The statutory language … applies only to a vote to authorize a contract. The decision to indemnify does not involve a contract.”

Critics have raised doubts that the four Longview council members acted “in good faith.” Thomas Samuels, one of the three citizens who have brought them to court, notes that the defendants failed to consult Gigler, the city attorney, or other sources of expertise — such as the city’s liability pool authority (the WCIA) —  before making decisions about Swanson and Duscha.

Samuels said that the council members could have achieved their goals openly, without illegal secrecy.

“Instead, they behaved clandestinely, defiantly and with utter reckless abandon,” Samuels said in a prepared statement.

Samuels, Melink and former City Councilman Mike Wallin are seeking fines against the four council members, referral to law and justice officials for further investigation and a cease-and-desist order against further OPMA violations. Their suit also seeks Swanson’s reinstatement.

The plaintiffs are supported by a bipartisan group of about 70 citizens.

For now, the suit focuses on a narrow matter. It accuses Halvorson, Young,  LaFave and  Boudreau of violating the OPMA in how they hired and negotiated a contract with Duscha. A negotiating subcommittee of two council members was appointed to bargain with him without council authorization or the knowledge of the council’s three minority members, according to the suit.

Duscha’s appointment took place in a perfunctory vote with little debate about alternatives or whether the former police chief is qualified to be the city’s top administrator. The slam-dunk decision and fact that Duscha is a longtime ally of Councilwoman LaFave has led to allegations of cronyism.

Melink, Samuels and Wallin filed the court action last month. They say they expect to file more OPMA allegations. One additional claim will be that Jan. 25 text messages and phone calls among the four councilors show they secretly plotted an executive session that night in a botched attempt the smear Swanson over someone else’s clerical error.

A first hearing in the case has been delayed twice and now is slated for May 8 in Cowlitz County Superior Court.

Swanson’s defenders have praised her for hiring talented staff, her budgetary expertise, indefatigable work ethic and leadership to establish the city’s Hope Village homeless project. She scored outstanding marks on her last and only council evaluation, which took place in August.

A bipartisan array of former city officials, business leaders and city employees pleaded with the council foursome to back off and explore any complaints though a methodical and independent process. They and minority council members warned the majority that firing Swanson would disrupt city operations and lay the city open to costly legal battles. Swanson is expected to sue.

The majority members — three of whom were elected in November — fired Swanson “without cause.” However, they and their conservative allies have objections to Hope Village and criticized some of Swanson’s personnel decisions, including the hiring of David Wallis as IT manager (he is the husband of Councilwoman MaryAlice Wallis, who was then mayor). Some of the allegations have been distorted — such as a those involving a discrimination suit the city settled last year with two Chinese-American IT workers.