OPMA settlement offer is risky strategy

Four defendant Longview councilors unlikely to step down or face recall any time soon; removing them should be voters' job — starting in 2025 with Spencer Boudreau

The plaintiffs who allege that four Longview City Council members violated the state open meetings law early this year have proposed a court settlement that would require one member of the council majority bloc to step down.

As much as I agree that the council majority has acted illegally and recklessly, this move is risky and could backfire politically.

But first, the news.

The proposal also would require the defendant councilors to publicly acknowledge that their actions on January 11th, January 25th, February 8, February 22, March 13, March 21 and March 28 caused “negative consequences to the city, including staff resignations, reduced staff and employee morale, increased city expenses and harm to the public trust.”

Those dates have to do with the council majority’s decisions to terminate City Manager Kris Swanson and the hire retired city police chief Jim Duscha as an interim manager.

The offer includes multiple other requirements, such as requiring the defendants to retake compliance training on the state Open Public Meetings Act (OPMA) and complying with the act in the future.

The offer was made Oct. 3 and expires on Friday, Oct. 11 if it is not accepted.

The offer came from the office of Seattle attorney Michelle Earl-Hubbard, who represents the plaintiffs, Mike Wallin, John Melink, and Thomas Samuels. It was sent to the attorneys representing defendant council members Erik Halvorson, Keith Young, Kalei LaFave and Mayor Spencer Boudreau.

The four members are accused in a civil suit of colluding through electronic and other means to make decisions about Swanson outside of public meetings and without the involvement of the three other council members.

The state’s Open Public Meetings Act prohibits elected officials from having “serial“ or “daisy chain” private meetings to arrive at decisions, even if they are later formalized in a public vote.

Through the state Open Records Act, Wallin and Samuels have obtained and documented hundreds of phone calls, text messages and emails exchanged among the foursome that coincided with their efforts to terminate Swanson and hire Duscha.

In her letter, Earl-Hubbard says the plaintiffs are offering a settlement to save the city taxpayers the cost of a long and involved lawsuit that would require extensive discovery hearings. The defendant council members voted to have the city pay their legal costs because the city’s liability insurance authority does not cover attorney fees for OPMA cases. Despite objections from the public and other council members, the defendants say they “acted in good faith,” making them entitled to representation at taxpayer expense. (The council’s action does not obligate the city to pay any penalties or punitive damages the court may issue against the defendants.)

“This offer should not be taken as a signal that we have any concerns in the strength and ultimate success of the lawsuit against the defendants. Rather it is a signal that we do not trust the defendants to value the interest of the taxpayers/their constituents as strongly as my clients do,” Earl-Hubbard writes.

“We are making this offer now to try to save taxpayers from the expense of defending the defendants’ indefensible actions.”

The settlement offer would require either LaFave, Young or Halvorson to step down. They all were elected last November and do not stand for re-election until 2027. Boudreau must stand for re-election in 2025. The settlement offer thus aims to strip the council’s conservative bloc of its majority position, which enabled it to fire Swanson and hire Duscha as interim.

The remaining six councilors would choose a replacement from among applicants if any member steps down.

Don’t expect the defendants to accept the offer, which coincides with the city’s struggles to fill $8 million and $11.3 million budget gaps projected for 2025 and 2026, respectively. The timing of the offer seems intended to pressure the defendants into settling. However, unlike the plaintiffs, the defendants are not personally bankrolling their case and are under no personal financial squeeze to resolve it.

By seeking a councilor resignation, the plaintiffs are trying to achieve through political means what they cannot accomplish through the courts and may be unlikely to achieve through a recall election. Conservative critics already are accusing them of using the courts as leverage for political purposes and negate the votes that got the council foursome elected.

Washington courts do not have authority to dismiss elected officials, who can be removed only in a recall election. And state law prohibits recalls against public officials for political purposes, for policy choices that some people just don't like, or for managerial mistakes.

The targeted elected official “must have engaged in substantial wrongful conduct that affects or interferes with the performance of public duty,” University of Washington Law Professor Hugh Spitzer notes in a university post.

“The recall statute says that the petitioners have to file a detailed description of wrongful conduct or wrongful acts and they have to have some facts to back them up. And so recall petitions are routinely thrown out in Washington by our courts because they just have nebulous complaints about a public official or they complain about policy or management choices,” Spitzer writes.

The Longview plaintiffs MAY have a recall case — IF they prove in court that the defending councilors broke the state Open Meetings Act. Ample evidence disclosed the public so far strongly suggests that they did. But to force that issue now puts the cart before the horse, and this case could drag on a long time.

And there’s one thing that people on both sides of this issue seem to forget. The majority of the Longview electorate is only vaguely aware of what is going on with this conflict. I’m frankly shocked at the level of ignorance when I ask people about it. So marshaling public support for a recall — or to pressure one of the foursome to step down — is a long-shot challenge.

Like I said, I’m the last person to defend this foursome.

They lied about their intentions before being elected to get into office. They preached transparency but practiced secrecy. They had no just or valid cause to fire Swanson, despite their protestations to the contrary. They fabricated (and failed) to cook up a reason to discipline her. They gave her no opportunity to defend herself. They interfered with her authority. They ignored the bipartisan advice of former council members, city managers, businesspeople and city staff to retain her. They ignored her stellar job performance from the previous council.

Their actions have tarnished the city’s reputation, led to the dismantling of the city administrative staff, and tallied hundreds of thousands of dollars in costs for severance payments, contact employees, Swanson’s eventual claim settlements, and their own legal costs. The tab is far from settled, but it seems destined to well exceed $1 million. (There is no truth to a report circulating that the city has settled with Swanson for $3 million. Her breach of contract claim against the city and the discrimination/harassment claim she filed with the Equal Employment Opportunity Commission still are pending.)

This sorry record should, I hope, be ample reason for voters to cast out this lot at the appropriate election time — starting when Boudreau is up for re-election next fall. It is their job, and no one else’s.

Using the courts as a lever to force one of them out is unlikely to succeed, would leave three of the defendants in office and would leave a bitter taste among their supporters in the electorate.