Miller v. City of Tacoma

Sanders, J.

— We accepted direct review from a judgment dismissing the plaintiffs complaint alleging the Tacoma City Council violated the Open Public Meetings Act of 1971 (RCW 42.30). The issues presented are: (1) whether there is substantial evidence to support the challenged factual findings of the trial court; (2) whether the council violated the Open Public Meetings Act by conducting a series of ballots in executive session to arrive at a consensus candidate for appointment to the Tacoma City Planning Commission; and (3) if the Open Public Meetings Act was violated, whether Tacoma city council members are subject to a civil penalty under RCW 42.30.120(1) for a knowing violation. We conclude the factual findings of the trial court, are supported by substantial evidence; and, based on those findings, we further conclude the Open Public Meetings Act was violated by the Tacoma City Council, but the council members are not subject to a civil penalty under RCW 42.30.120(1) because this violation was unknowing. We therefore reverse the judgment of the trial court and remand for an award of reasonable attorney fees and costs.

I.

FACTS

The Tacoma City Planning Commission (the planning commission) is a public body created by the Tacoma city charter charged with advising the council about zoning, land use, and environmental matters. Appointees to the commission are uncompensated. In 1995 a position on the planning commission became vacant.

Miller and three other candidates were interviewed by the appointments committee of the Tacoma City Council (the council) for the position on the planning commission. Although the appointments committee initially voted 3-0 to recommend Miller for the position, the committee eventually made no recommendation and referred the candidates for interview by the full council. The four candidates for the position were interviewed by the full city council at a regularly scheduled meeting on June 6, 1995. One of the candidates withdrew at the meeting and urged support for Miller.

Following an interview with the candidates the council asked the city attorney about the propriety of going into executive session to evaluate the qualifications of the candidates to the planning commission. The city attorney assured the council that it was appropriate to consider the qualifications of the candidates in executive session. The mayor then announced that the council was retiring to executive session “for the purpose of discussing qualifications of an uncompensated public employee.” Clerk’s Papers (CP) at 6.

During the executive session sheets of paper were passed out which had the names of the three candidates (Miller, Thompson, and Salter) printed thereon. Each council member placed a mark beside the name of his or her preferred candidate. The papers were collected and the results tallied on a white board. There were three rounds of secret ballots. After the initial round, the result was tabulated as Miller—3, Thompson—3, and Salter—3. In the second round the result was Miller—4, Thompson—3, and Salter—2, and in the third round the result was Thompson—6 and Miller—3. Following completion of the third round of secret ballots, the executive session was concluded. The trial court found the council members “believed that they were acting appropriately under the law” during the course of the executive session. CP at 284 (finding of fact 10).

That same evening, immediately after the executive session, the council returned to an open meeting. A motion was made and seconded to direct the city manager to present a resolution at the following week’s council meeting to appoint Thompson to the planning commission. That motion carried with three council members not participating.

Prior to the next council meeting, scheduled for June 13, 1995, an administrative assistant in the clerk’s office sent a letter to Thompson congratulating him on his selection for appointment to the planning commission and thanking Miller for applying for the position.

On June 13, 1995, at the following week’s council meeting, the requested resolution appeared on the council agenda to appoint Thompson to the planning commission. Although alternative resolutions were available to appoint either plaintiff Miller or candidate Salter, the council adopted the resolution appointing Thompson by a vote of 9-0. Thompson was thus appointed to the planning commission.

Miller sued the City of Tacoma and the council members for violating the Open Public Meetings Act. After a bench trial the court concluded the council did not violate the act by conducting secret ballots during the executive session. The trial court further factually found even if the council members violated the act, they did so unknowingly and therefore were not subject to a civil penalty. Miller appealed directly to this court. We accepted direct review.

II.

ANALYSIS

A, Substantial evidence supports the trial court findings of fact which are challenged on appeal.

The appellant assigns error to several of the trial court’s findings. However an appellate court will uphold the trial court’s factual findings as long as they are supported by substantial evidence. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 819, 828 P.2d 549 (1992) (“Findings of fact supported by substantial evidence are verities on appeal.”). The test of substantial evidence is whether there is “evidence in sufficient quantum to persuade a fair-minded person of the truth of the declared premise.” Robinson v. Safeway Stores, Inc., 113 Wn.2d 154, 157, 776 P.2d 676 (1989) (quoting Holland v. Boeing Co., 90 Wn.2d 384, 390-91, 583 P.2d 621 (1978)). Review of the findings is therefore limited to examining the record to establish whether there is substantial evidence to support each challenged finding. As we conclude that such is the case, the challenged findings are verities for the purpose of this appeal.

B. Tacoma City Council violated the Open Fublic Meetings Act when it conducted a series of secret ballots in executive session to arrive at a consensus candidate for appointment to the planning commission.

Miller argues the city council violated the Open Fublic Meetings Act (RCW 42.30) because this executive session did not fit within that exception to the act which permits consideration of the qualifications of candidates for public employment outside a public meeting. In particular Miller argues the exception under RCW 42.30.110(l)(g) for evaluation in executive session of qualifications of applicants for public employment does not apply because positions on the planning commission are unpaid. Miller further argues even if the executive session were permitted under RCW 42.30.110(l)(g), balloting of council members was not permitted by the statutory exemption and should have been accomplished in public.

The City of Tacoma argues the council had a right under RCW 42.30.110(l)(g) to go into executive session to evaluate the qualifications of applicants for appointment to the planning commission. It further argues although the balloting was “action,” it was not “final action” as defined by the act and therefore was not required to take place in public.

The parties agree the Open Public Meetings Act applies to the city council.¹ The purpose of the act is to ensure public bodies make decisions openly:

The legislature finds and declares that all public commissions, boards, councils, committees, subcommittees, departments, divisions, offices, and all other pubbc agencies of this state and subdivisions thereof exist to aid in the conduct of the people’s business. It is the intent of this chapter that their actions be taken openly and that their deliberations be conducted openly.

The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their pubbc servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.

RCW 42.30.010.

The act also mandates a liberal construction. RCW 42.30.910 (“[t]he purposes of this chapter are hereby declared remedial and shall be liberally construed”). Liberal construction of a statute “implies a concomitant intent that its exceptions be narrowly confined.” Mead Sch. Dist. No. 354 v. Mead Educ. Ass’n, 85 Wn.2d 140, 145, 530 P.2d 302 (1975).

The act states the general rule that:

[a]U meetings of the governing body of a pubbc agency shall be open and pubbc and ab persons shab be permitted to attend any meeting of the governing body of a pubbc agency, except as otherwise provided in this chapter.

RCW 42.30.030. Pursuant to this general rule the act requires all “meetings” be open to the public unless one of the act’s exceptions applies. To analyze compliance with the act in the present case, we must therefore consider whether (1) the executive session falls within the definition of “meeting” under the act, and (2), if so, whether one of the act’s exceptions applies.

1, The executive session was a “meeting” covered by the Open Public Meetings Act.

“Meeting” is defined as “meetings at which action is takén” (RCW 42.30.020(4)). “Action” is defined as:

the transaction of the official business of a public agency by a governing body including but not limited to receipt of public testimony, deliberations, discussions, considerations, reviews, evaluations, and final actions.

RCW 42.30.020(3) (emphasis added).

The parties agree the city council took “action” in the executive session that is the subject of this appeal. Br. of Appellant at 17-24 (arguing the use of ballots in the executive session was “final action,” which is included in the act’s definition of “action” under RCW 42.30.020(3)); Br. of Resp’ts at 27 (“[T]he City Council took ‘action,’ but it did not take ‘final action’ in executive session”). Therefore the executive session was a “meeting” subject to the Open Public Meetings Act requiring it to be open to the public unless it satisfied one of the act’s exceptions.

2. Balloting in an executive session to arrive at a consensus candidate for public employment is not exempt.

The act provides exceptions to the general rule that meetings must be open to the public, including the following:

Nothing contained in this chapter may be construed to prevent a governing body from holding an executive session during a regular or special meeting:

(g) To evaluate the qualifications of an applicant for public employment or to review the performance of a public employee. However, subject to RCW 42.30.140(4), discussion by a governing body of salaries, wages, and other conditions of employment to be generally applied within the agency shall occur in a meeting open to the public, and when a governing body elects to take final action hiring, setting the salary of an individual employee or class of employees, or discharging or disciplining an employee, that action shall be taken in a meeting open to the public[.]

RCW 42.30.110(1) (emphasis added).

The central question in this appeal is whether RCW 42.30.110(l)(g) permitted the city council to retire to executive session and then ballot its members. For this to be exempt from the open meeting requirement two criteria must be satisfied: (1) the conduct of a secret ballot must be an “evaluation” for the purpose of the exception and (2) the applicants for this unpaid position must be applicants for “public employment.” As we conclude balloting is not an “evaluation,” we hold the meeting was not exempt, and therefore do not address the second factor.

Tacoma argues the city council was entitled to conduct ballots in executive session because this was “action” (as opposed to “final action”) under RCW 42.30.020(3). Br. of Resp’ts at 16. This argument parallels the conclusion of the trial court:

The City Council was authorized to take “action” in Executive Session, pursuant to RCW 42.30.020(3), including, but not limited to, deliberations, discussions, considerations, reviews, and evaluations of the candidates for appointment to the Planning Commission.

CP at 285 (conclusion of law 4).

However Tacoma’s argument (and the trial court’s conclusion) involves an inherent misreading of the operation of the Open Public Meetings Act and its exceptions. The argument the council could take “action” in executive session not only fails to give effect to the act’s mandate for liberal interpretation, but in fact implicitly reverses the fundamental premise of the act that all “action” must be taken at meetings open to the public. RCW 42.30.030. RCW 42.30.020(3) does not authorize action to be taken in executive session, as the trial court suggests, but rather provides a broad definition of “action.” Contrary to the trial court’s conclusion, the act’s general rule is that “action” must be taken in an open meeting (RCW 42.30.030; RCW 42.30.020(4)); whereas one of the act’s exceptions must be triggered before an executive session may be convened.

Although the Tacoma City Council was entitled to go into executive session to evaluate the qualifications of applicants for public employment under RCW 42.30.110(l)(g), once in executive session the council was not immunized from the provisions of the Open Public Meetings Act. For the council to comply with the act it was required to limit its action in executive session to that authorized by the relevant exception. This accords with the mandate for liberal interpretation of the act contained in RCW 42.30.910 and the consequent narrow construction of exceptions to the general rule. Mead Sch. Dist. No. 354, 85 Wn.2d at 145. Although RCW 42.30.110(l)(g) specifically states “when a governing body elects to take final action hiring . . . that action shall be taken in a meeting open to the public,” the rule that exceptions to the act must be narrowly interpreted, if not the plain language of the statute, prevents the conclusion that all action other than “final action” is permitted in executive session. Instead, only the action explicitly specified by the exception may take place in executive session. Therefore in the present case the council in executive session could only “evaluate the qualifications” of the applicants for public employment: any action taken beyond the scope of the exception violated the act.

As the word “evaluate” is not defined in the statute, the dictionary may be consulted. State v. Belgarde, 119 Wn.2d 711, 716, 837 P.2d 599 (1992) (“when a statutory term is undefined, dictionaries may be consulted to determine its meaning.”). The definition of “evaluate” is “to examine and judge concerning the worth, quality, significance, amount, degree, or condition of.” Webster’s Third New International Dictionary 786 (1981). In the context of RCW 42.30.110(l)(g), the verb “evaluate” applies to the applicant’s qualifications. Reading the exception in 42.30.110(l)(g) narrowly and in accordance with the purposes of the act, it is clear the council could discuss and consider the worth, quality and significance of the applicants’ qualifications, and individual council members could express their opinions on such matters, but they could not choose a candidate. Here the council conducted a secret ballot. This did not weigh or evaluate the qualifications of the applicants, but identified a consensus candidate for appointment to the planning commission. As such, these secret ballots constituted “action” beyond mere evaluation of the candidates’ qualifications and therefore fell outside the scope of the RCW 42.30.110(l)(g) exception.

Because the balloting procedure employed by the council fell outside the exclusion provided by RCW 42.30.110(l)(g), it should have been conducted in a meeting open to the public. The trial court’s conclusion of law 4 that the council was entitled to take “action” in executive session was error.

For the purposes of the present case it is unnecessary to determine whether the action of taking ballots amounted to “final action” under the statute as a violation of the act occurred because the balloting constituted “action” which went beyond the scope of the exception provided by RCW 42.30.110(l)(g). However as the arguments of the parties focused on whether the balloting amounted to “final action” in terms of the statute, we will also address that issue.

RCW 42.30.110(l)(g) explicitly provides that “final action hiring” must take place in public. The act states:

“Final action” means a collective positive or negative decision, or an actual vote by a majority of the members of a governing body when sitting as a body or entity, upon a motion, proposal, resolution, order, or ordinance.

RCW 42.30.020(3).

Tacoma argues courts have interpreted the term “final action” narrowly, and that in the present case the action taken by city council in executive session was not “final action.” Tacoma relies on three cases: Organization To Preserve Agric. Lands [OPAL] v. Adams County, 128 Wn.2d 869, 881-84, 913 P.2d 793 (1996), Schmitt v. Cape George Sewer Dist. No. 1, 61 Wn. App. 1, 809 P.2d 217 (1991) and Slaughter v. Snohomish County Fire Protection Dist. No. 20, 50 Wn. App. 733, 750 P.2d 656 (1988).

In OPAL v. Adams County it was argued two commissioners violated the Open Public Meetings Act by discussing over the telephone a proposal to issue an unclassified use permit (UUP) for a solid waste landfill and recycling facility and agreeing how they would vote at the subsequent public meeting. Perusing cases cited in support of that argument, this court was “particularly persuaded” by a Florida case which held invalidation of a formal action was not required by the Florida open meetings act merely because there had been prior informal discussions. Tolar v. School Bd., 398 So. 2d 427, 428 (Fla. 1981). Referring to Tolar, we stated:

In so holding, the [Florida] court distinguished the case before it, in which the opposing party was given a full opportunity to express his views in a public meeting, from cases in which formal action is merely summary approval of decisions made in numerous and detailed secret meetings. Given the extensive opportunity for input by opposing parties in this case, we agree with the trial court that invalidation of the UUP decision is not warranted merely because two of the commissioners discussed in private who should make the motion to issue the UUP

OPAL, 128 Wn.2d at 884 (citations omitted) (emphasis added). OPAL recognizes in obiter dictum that decisions taken in secret meetings may constitute “final action” even though there is subsequent formal approval of the decision in a public meeting. However OPAL is distinguishable from the present case because OPAL involved informal discussions between only two commissioners whereas in the present case there was a formal meeting of the council in executive session where all council members were balloted until a consensus was reached.

The other two cases relied on by Tacoma, Schmitt v. Cape George Sewer District No. 1, 61 Wn. App. 1 and Slaughter v. Snohomish County Fire Protection District No. 20, 50 Wn. App. 733, are inapplicable. In neither Schmitt nor Slaughter was the Court of Appeals considering exceptions to the act under RCW 42.30.110, but rather RCW 42.30.060(1), a provision of the act which requires an “ordinance, resolution, rule, regulation, order, or directive” must be adopted at a public meeting which has been scheduled in accordance with the provisions of the act. Schmitt and Slaughter, however, do not define “final action” under the act.

The statutory definition of “final action” must control. That definition consists of two parts, either: (1) “a collective positive or negative decision,” or (2) “an actual vote by a majority of the members of a governing body when sitting as a body or entity” when either follows “a motion, proposal, resolution, order, or ordinance.” RCW 42.30-.020(3). The definition does not rule out the legal possibility that the chosen course of action might be altered at a subsequent date, as is arguably the case here.

Here the city council took “final action” as that term is used in the statute. RCW 42.30.020(3). In executive session council members balloted until a consensus was reached on the best candidate, whereupon the executive session was terminated. Thus “a collective positive or negative decision” was reached satisfying the first part of the definition of “final action” in RCW 42.30.020(3), in addition to “an actual vote by a majority of the members of a governing body when sitting as a body or entity” satisfying the second part of the definition. Although no formal motion was made or adopted in the executive session, CP at 284 (finding of fact 8), “final action” is not limited to a formal motion, but also clearly covers informal proposals. The balloting conducted in executive session was upon at least an informal proposal as evidenced by the distribution of ballot sheets and tallying of votes. The council’s action therefore meets the statutory definition of “final action” under RCW 42.30.020(3) because there was a collective decision made by an actual vote on at least an informal proposal.

The flaw in the council’s argument is that it fails to recognize “final action” may occur without a formal motion. “Final action” as defined in RCW 42.30.020(3) does not require a formal motion; it can simply be an informal proposal resulting in a positive or negative decision, or an actual vote. Thus, although in the present case a formal motion was neither made nor adopted in executive session, the balloting of the council constituted “final action” under RCW 42.30.020(3), which explicitly falls outside the scope of the exception provided by RCW 42.30.110(l)(g).

The council therefore violated the Open Public Meetings Act. When the council conducted ballots to arrive at a consensus candidate, it went beyond the scope of RCW 42.30.110(l)(g) that allows for an executive session only to “evaluate” candidates’ qualifications. The balloting was at minimum an “action” which should have occurred in a public meeting. However in addition the balloting was also “a collective positive or negative decision” and a vote upon an informal proposal, therefore constituting “final action” as well. “Action” and “final action” must occur in public unless exempt. RCW 42.30.020(3) and (4); RCW 42.30.030. The act specifically states secret balloting may not occur at any meeting which is required to be open to the public. RCW 42.30.060(2).

C. Civil Penalty not justified, reasonable attorney fees are.

The trial court found the council members “believed that they were acting appropriately under the law,” CP at 284 (finding of fact 10), when they conducted secret ballots in executive session. They are therefore not subject to a civil penalty pursuant to RCW 42.30.120(1). However Miller is entitled to recover her reasonable attorney’s fees and costs both at the trial level and for this appeal. See RAP 18.1(a) (“If applicable law grants to a party the right to recover reasonable attorney fees or expenses on review, the party must request the fees or expenses as provided in this rule . . . .”); RCW 42.30.120(2) (“Any person who prevails against a public agency in any action in the courts for a violation of this chapter shall be awarded all costs, including reasonable attorney fees, incurred in connection with such legal action.”); Protect the Peninsula’s Future v. Clallam County, 66 Wn. App. 671, 678, 833 P.2d 406 (1992). We therefore direct the commissioner to determine the amount of the award for this appeal (RAP 18.1(f)), and remand to the trial court to determine the amount of attorney fees and costs otherwise due Miller. Reversed.

Guy, C.J., and Durham, Smith, Johnson, Alexander, Talmadge, and Ireland, JJ., concur.

1 “Public agency” is defined by the act to include cities (RCW 42.30.020(l)(b)), and “governing body” is defined as “the multimember board, commission, committee, council, or other policy or rule-making body of a pubbc agency, or any committee thereof when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or pubbc comment.” RCW 42.30.020(2).