At the June 5 council meeting, councilman Steven Bonkowski tossed aside an item on the agenda to consider whether to enter into an agreement with the Kitsap Public Utility District to manage the city’s water utility. Without any prior notice to the council or the public, Mr. Bonkowski took the podium and made his own presentation concerning water rates and the utility’s reserve. He proffered six motions for council consideration, including cutting water rates by 35% and refunding $3 million of reserves to ratepayers. Mr. Bonkowski took great exception to the analysis contained in a memo from City Manager Doug Schulze, saying it “misrepresents many issues,” and “failed” to respond to various aspects of council’s direction. The Bainbridge Review’s article about it is here. The Inside Bainbridge article, with more detail, is here.
At the June 19 meeting, the council discussed Bonkowski’s proposals and put the rate reduction on the June 27 agenda. Council member Bob Scales said he may not be available that day and that it was customary for votes on significant issues to be scheduled when all seven council members will be present. Mr. Bonkowski said that the views of each council person were already known and indicated he would add the item to the agenda at the June 27 meeting.
I sent the following email to council today.
Dear Council:
It was discouraging to hear at last week’s council meeting Mr. Bonkowski’s opinion that the presence of dissenting colleagues is unnecessary when the council votes on important water utility decisions. That position is contrary to general principles of democratic process and also appears to violate Section 8.5 of your Governance Manual, which gives dissenting council members the right to state their reasons for dissent on the record.
This is not the only recent violation of good process and best practices by council members, and by citizen committee members appointed by the council majority. I have learned via emails obtained in a public records request, that before Mr. Bonkowski made his June 5th water utility presentation, he obtained help and research from UAC member Eric Turloff. Mr. Turloff’s out-of-view assistance was conducted with the knowledge of UAC Chair Arlene Buetow, and UAC member Jeff Kantor, as well as council member Dave Ward, all three of whom were cc’d on several emails. This is in direct violation of BIMC Ch. 2.33 (which governs the Utility Advisory Committee). That ordinance provides that “The committee shall act in an advisory capacity to the city council…” The ordinance does not allow for a few committee members to act in advisory capacity to a few council members. Rather, the committee must act as a whole to advise the council, also as a whole. Further, section 2.33.060 provides: “Meetings shall be open to the public.” Discussions via email, phone or in person by a quorum of three members of the UAC would be a meeting which was not open to the public, and thus violative of section 2.33.060.
This activity may also violate the state Open Public Meetings Act. I have a letter from Assistant Attorney General Tim Ford, indicating that the UAC is probably subject to the OPMA on three separate grounds. That is consistent with our state’s strong support for openness in government. I will forward that letter on request.
In any event, the UAC is clearly governed by the above-referenced city ordinance.
It is possible (though highly unlikely) that the entire UAC discussed and voted at a public meeting on Mr. Turloff’s advice to Mr. Bonkowski. Unfortunately, the public has no way to know what the UAC has done because, under the management of chair Arlene Buetow, the UAC has failed to submit any of its meeting minutes since October 2012. This is also in violation of chapter 2.33.
We do know that the council, as a body, did not request any advice and information from the UAC on this topic. Mr. Bonkowski appears to have realized that the public and some of his council colleagues would question his activities, as he did not disclose Mr. Turloff’s involvement, either at the June 5 council meeting or when he gave quotes to the Bainbridge Review. On each of those occasions he created the impression that he prepared his presentation on his own. Similarly, Mr. Ward made no mention of his contact with Mr. Turloff, even though he made several remarks about the UAC during recent council meetings.
From the ultra vires act of hiring Inslee Best in January of 2012, to the cutting off of council debate which earned a scathing editorial from the Bainbridge Review in March of 2012, to violations of the Governance Manual, to subjecting the City Manager to harsh public remarks that were in the nature of a performance review, the four majority council members have shown that you are often unmindful of the law, council policy, governance rules and basic courtesy.
Maybe you think rules violations go with the territory if you want to get things done. Maybe you are frustrated with how slow and time consuming our governmental processes are, and how little seems to be accomplished. Many people share that frustration. But there’s a lot of daylight between the extremes of governmental foot-dragging, and rash decision-making hidden from public view and outside the legal framework. Mr. Bonkowski could have prepared and presented his information less secretively and without demeaning the City Manager. His ideas would have generated far less backlash and the council would now be in the same position it is today: ready to vote on a water utility rate decrease.
Getting things done is not synonymous with good government. If one’s only mission is the speedy and efficient accomplishment of goals, a dictatorship is your best bet. Democracy is messy, time-consuming and full of the need for compromise. It is based on the ideal that people with different opinions can come together, argue, disagree, and eventually work out solutions.
The more divided a community is, the more important the democratic rules become, because without adherence to them, the bonds and agreements of civil society break down. The social contract ceases to be effective. Turmoil and acrimony are the inevitable result, and productivity decreases. We have seen how harmful it is on the national level for leaders to operate on a theory of rules-be-damned, the-end-justifies-the-means. Our country is paralyzed, and Congress has a 14% approval rating. I’m not sure the island’s rating for our council would be much higher.
You all ran for office when trust in local government was at a low point. Some of you made council dysfunction a campaign issue. Mr. Bonkowski promised a plan “that makes government more transparent, responsible and accountable.” But under your watch, transparency, responsibility and accountability continue to decline, and council dysfunction is worse than ever. Several of you do not hide your lack of trust and low regard for staff. Even your hand-selected City Manager, who has been on the job only a few months, has been given a public dressing down. At a time when it is imperative that everyone in our government work as a team to solve problems that have developed over many years, these actions have further eroded trust and a collaborative environment at city hall. A philosophy of staff-bashing and self-inflicted crisis is no kind of leadership, either in the public or private sectors.
Council will undoubtedly continue to clash over the issues, and that is good, for in doing so you are representing the views of our divided community. But if each of you committed to rigorous and respectful observance of the rules, laws and customs of council and insist that your commissions and committees do so as well, it would provide a better framework for disagreement and go a long way in restoring trust in our government. It might even reduce conflict. That can only make your jobs easier.
Very truly yours,
Althea Paulson
Althea,
If you would have attended any of the multiple advertised and open to the public UAC meetings Mr. Turoff’s financial analysis was discussed, the City Manager’s cost proposal was presented, and the obvious observation that there was going to be no reconciliation between the City’s high cost to manage a water purveyor who has a proven track record of operating water systems, you probably would have written this piece in a different tone.
Mayor Bonkowski’s proposals are actually refreshing. City Manager gets what he wants … retaining operations of the water utility and no union fight. Ratepayers will almost certainly get another rate reduction … indicative of just how absurdly financially managed the utility has been under past City leadership. And refunds will almost certainly be put on hold pending a delayed water system plan.
Not defending how Mayor Bonkowski went about this or presented it to Council, nor the “do it now” vote, but finally there is some refreshing new direction finally being taken on our three financially mismanaged utilities that most of the current and past City Council members have chosen to simply ignore. Financial reports are provided to City Council to actually read use, and finally somebody on the Council has read at least some of them and has opted for long overdue change.
Soon, sewer and stormwater should get similar attention, and that analysis will be good news to ratepayers, although there are some sewer capital costs that are going to be financially challenging, and the new sewer plan might contain some financial surprises.
Robert Dashiell
Hi Robert. Good to hear from you. I have two points:
1. Citizens should not be required to attend meetings to understand what is going on in their government. Attending CC meetings, as well as all the meetings of the various committees and commissions is simply impossible for the ordinary person to do. Our system of government understands that, and has therefore adopted laws requiring the keeping and public disclosure of minutes and records. Most people don’t want to conduct city business themselves, but want to be assured that those entrusted with doing so are conducting themselves fairly and in accordance with the law.
2. Whether I have been at these meetings or not is beside the point. My comments do not go to the details on how to run the city’s utilities. They are addressed to the poor process–and in some cases unlawful process– some of our council members and committee members use to conduct the people’s business. If all of this was conducted in accordance with the rules, I wouldn’t have written the letter.
Althea
Fully agree citizens simply cannot attend the literally hundreds of City meetings. But the minutes issue is an interesting one.
The City currently provides staff support to only the Planning Commission, Hearing Examiner, and Civil Service Commission. So when a citizen volunteers to serve on any other City Committee, they are currently subject to being assigned the very time consuming (and often challenging) task of keeping a set of committee minutes. The CIty Manager says he would reconsider the decision for not providing a staff person to do the administrative things required by a committee, but no progress to date. And then the UAC’s member Andy Maron supported the concept of keeping UAC minutes as simple as possible since it’s so hard to participate in a discussion and also keep written record of what is being said, so the idea would be minutes that would read something like “water utility financials discussed.” That doesn’t really tell anyone anything that they couldn’t derive from the agenda, but given no dedicated staff support, that ‘s probably what volunteer minutes are going to look like.
There may have been 20 pages of details that were discussed during the actual, and keeping track of all the comments and changes and discussions is not easy matter for any committee member who volunteers his or her time to lending their professional experience to the committee.
An interpretation that minutes are required for “resolutions, transactions, findings, and determinations” ( 2.33.060) excludes all general discussions. Anything the UAC votes on as a body and sends to the City Council is written and is a public record. So technically, I think there is an argument the UAC is complying with the existing Code provisions, since the City has a “record” of the meeting as posted on the City calendar, usually along with an agenda of topics, and UAC findings and determinations are public records when are provided to the City Council. But most UAC work does not result in a formal determination or finding.
So to get better records of committees and what happens, the CIty is almost certainly going to have to provide a staff person record and prepare the minutes.
And might might point out this is not just a problem on the Utility Advisory Committee. For example, try to find the minutes of the HDDP revisions subcommittee. Or any number of other committees and subcommittees. In many cases, they just don’t exist.
I have to disagree with Robert in his defense of the U A C and the failure to keep, and make public, minutes of the committee’s deliberations. The Planning Commission benefits from the services of Theresa Rice, on the City staff, who keeps accurate minutes of the Commission’s meetings in addition to her other duties. But the absence of a City staffer is no excuse. Any citizen committee, especially one charged with problem-solving and fiduciary responsibilities, has to maintain records of its meetings, first of all for the benefit of its own members, who may be absent from time to time. If this is not done, and done well, it reflects on the group’s leadership and the integrity of its members. The various non-profits that I’ve been involved with all manage to maintain and distribute minutes of their meetings; sometimes they are prepared by the person chairing the meeting.
Jon,
I am very much in favor of comprehensive minutes of all City meetings.
But, the committees that are legally required by the City’s municipal code should have City staff support to perform the administrative work and have the committee members do the often laborious research and, in the case of the UAC, financial analysis detail work. If minutes are an important government responsibility, then include in the City budget at least a minimal level of staff support. In the overall scheme of the amount of money the City spends annually, it’s not much more than white noise. And for the UAC, the amount of taxes and overhead the City collects from the three City utilities is absurdly high, including some $460,000 annually in utility taxes alone. A very small portion of that could be dedicated to providing administrative support.
We wouldn’t even be having this discussion (and perhaps Althea would not have crafted her comments the way she did) if the City did what the used to be standard practice … and that is provide administrative staff support to committees for recording and publishing meeting records.
The UAC is an advisory committee to the City Council. It has zero decision making authority. The Open Public Meeting (OPM) Act is not definitive on whether municipal advisory committees even fall within the State’s OPM Act. Tim Ford’s opinion position is not universally supported the the State’s AG office, and there has been no court case to test these two very differing opinions.
Your comment on non-profits doesn’t necessarily mean there isn’t a paid staff member doing the administrative work, including maintaining the minutes of the organizations meetings.
City Council could set policy here … set policy on what City committees will receive City staff support, and what committees have the own administrative support responsibility.
And that type policy would remove the political and personality issues that appear to be a large part of this discussion when the real problem is about utility financial management.
Robert:
You will recall (because you attended many of the meetings) that I was the Chair of the UAC when we lost our administrative support. We decided that the taking of minutes was too important to simply stop so we designated a committee member to do it at each meeting. The task was shared by Randall, Bob, Sarah, and even Arlene on occasion (I don’t recall Andy, Doug, or me taking any minutes) and we managed to take good minutes, approve them at subsequent meetings, and submit them to City staff for filing.
Dan Mallove
Althea, I applaud your comments. The problem seems to exist in several levels of government – independent of which party is in nominally in control.
Althea, this article — and your extraordinarily thorough research and records review — shine a bright light on what’s so wrong with the way some of our Council members, and the chair of our Utility Advisory Committee (UAC), carry out their duties for Bainbridge voters, taxpayers and ratepayers.
I disagree with Robert’s remark that it’s ok for UAC chair Arlene Buetow to maintain no records of UAC meetings because it would require some effort by UAC members — because the City isn’t spending tax dollars to send a paid employee to write the minutes.
My recollection – as City Council liaison to the UAC from 2009 through 2011 – is that there was no paid staff for the Committee during the tenure of the previous chair, Dan Mallove; but I recall detailed and informative written minutes being kept for the public. And I recall a consensus to operate the UAC consistent with the spirit of the state’s Open Public Meetings Act, whether or not that Act strictly applies to the UAC.
Bad process and bad governance lead to dumb policy, neglect of various citizen concerns, and bad results. I’m a city water ratepayer, but I think the current rush to make a one-size-fits-all rate cut is unfair to certain water customers and will lead to avoidable waste of our scarce underground water.
Council members Bonkowski and Ward are in such a hurry to ram through their preconceived water rate change that they’re completely missing two profound problems with our current water rate structure. They want to do it fast and make a simplistic flat percentage cut of the many different rate elements that apply to our many categories of water customers.
Yet, that would ignore something we’ve known since 2009 when utility rate professionals told the Council that the water rates are disproportionately high for multi-family residential customers (e.g. apartment dwellers), and commercial customers, compared to other customers. So a flat reduction is unfair to approximately 1,500 households in multi-family dwellings and about 200 commercial customers.
When our Council adopted a flat 45% rate cut in 2011, it was with the understanding that the UAC would study the rate structure in 2012 and come back to Council with recommendations to make the rate structure fairer with attention to water conservation issues. Then, everything got sidetracked as Arlene Buetow and David Ward politically promoted the idea of sending our water utility to KPUD, and the rate structure was never reviewed.
Furthermore, their rush to ram through a simplistic rate cut will ignore the way the relatively high fixed monthly water charge, and the relatively low usage charges, fail to provide an incentive for customers to conserve water.
The scientists of the USGS warned us in their exhaustive 2011 analysis of our water supply aquifers that there’s a risk of drawing down our deep water aquifers, depending on our pattern of water use in future years. In the rush to have their way, the majority is willing to jeopardize the sustainability of our water supply by further entrenching a rate structure that doesn’t sufficiently address water conservation.
Barry Peters
Former Council Member 2008-11
Two brief comments Barry.
Correct me if I am wrong, but I don’t believe the water utility rate structure has changed since you were elected to the City Council. The 45% rate reduction was an across the board percentage reduction retaining the same rate structure.
Did you do anything about the water utility rate structure while you were on Council for four years? If not, why is it now so important to you?
The water rate structure is also a largely independent issue than what is currently being discussed, which is focused on a cash heavy utility is still collecting more in water rate revenue than it’s spending to operate the water systems.
Above said, current water rates ARE structure to water conservation. I believe the City is currently complying with the water conservation rate structure requirements in State law, but like any utility rate structure, local jurisdictions have significant latitude to set utility rates. I might suggest the City complete their state mandated water plan update, then review the water rate structure if the the majority of the City Council determine it should be added to the City’s annual work plan.
Finally, you should perhaps get up to speed with the City’s plan to use the Head of the Bay well field and rest the deep Fletcher Bay well during the wet months. After all, it was the Council you served on that funded most of that rehabilitation work, and I hope you would have had the big picture of why the City was spending water utility rate payer’s money on bolstering the capacity of that well field.
Robert, I hate to get into so much back-and-forth but I’m going to respond to your line of argument about the minutes because it’s plainly wrong. Your opinion of what the city should do is not the test of what the UAC is required to do by city ordinance. Ch. 2.33 is not optional. The ordinance language is “shall” in the relevant places. For instance, “Meetings shall be open to the public.” That is straightforward and applies whether or not the state OPMA applies.
As to the minutes, the ordinance is equally clear. “The committee shall keep a record of its meetings, resolutions, transactions, findings and determination.”
In December of 2010, Brenda Bauer a memo sent to the city’s commissions and committees with notice that city budget cuts meant staff would no longer be provided. The memo advised that the groups would need to keep their own minutes, and would be responsible for forwarding them to the city for posting and records retention.
The minutes of the UAC’s December 7, 2010 meeting contain the following paragraph:
“Both Dan Mallove and Arlene Buetow expressed their desire to be elected co-chair of the committee. Chair Ward reminded the committee that because staff assistance would be drastically reduced in 2011, the vice-chair position would be responsible for more secretarial-in-nature duties such as note taking and agenda building.”
It is therefore very clear that the ordinance requires minutes and record-keeping, and that the UAC acknowledged its responsibilities after the cutbacks. The UAC is in violation of the ordinance.
The Bainbridge Island Review reports that “Up to 36 employees of the city of Bainbridge Island will take part in a three-day High Performance Organization training, which focuses on improving management and leadership skills.” After reading Althea Paulson’s timely enumeration of our city council’s past and present behavior it seems that some of our councilors would greatly benefit from this training. It is quite obvious that they are severely lacking in these skills as they have repeatedly demonstrated an inability or refusal to function in a manner that exhibits high performance and improved leadership. Basically, they continue to act as if the rules of good governance do not apply to them. We deserve better.
One of your commenters mentions that “Mr. Turoff’s financial analysis was discussed, the City Manager’s cost proposal was presented, and the obvious observation that there was going to be no reconciliation between the City’s high cost to manage a water purveyor who has a proven track record of operating water systems, you probably would have written this piece in a different tone.”
Let’s break this statement down. When was Mr. Turloff’s analysis discussed in public? Mr. Bonkowski’s presentation on June 5, which he clearly implied had been prepared by him alone, using data from the City website, was a complete surprise to anyone who was not inside the private circle discussing this. Mr. Bonkowski did not contradict any council member at the meeting who referred to this as “the mayor’s analysis”. The rest of us, who had only public agendas, minutes, and recordings to go on, thought that the meeting on June 5 would discuss (as shown on the agenda for this meeting) “Water Utility Management Interlocal Agreement with Kitsap Public Utility District (KPUD),” The “Mayor’s Presentation” available now on the web site, was not available to the public prior to the meeting. We expected to hear the City Manager explain his recommendation not to transfer management to the KPUD. Instead we heard Mr. Bonkowski’s presentation and Ms. Lester refused to call on the City Manager until much later in the meeting. The surprise of council members Scales, Hytopolous, and Blair at this dramatic turn of events is evidence enough that this new plan had been hatched in private, away from the eyes of the public and other members of the council after Mr. Bonkowski had learned (in private) that council member Blossom would vote against the management transfer. The UAC had a meeting scheduled for the 27th of May. There is no agenda and there are no minutes posted for this meeting or for any other meeting of the UAC in the entire month of May. Why would anyone who was relying on public information think that anything other than the upcoming vote on transfer of management of the water utility would be discussed at these meetings, if they were held?
It appears from the public records request and from public statements at council meetings that Mr. Bonkowski shared emails with a majority of the council and with Mr. Turloff, Ms. Buetow, and Mr. Kantor while excluding his minority fellow-members. If true, this is a violation of Washington State’s Open Public Meetings Act (OPMA). Today’s print edition of the Review indicates that Mr. Bonkowski and Mr. Ward used their private email accounts for this correspondence and have refused to turn over their contents upon public records request. Mr. Bonkowski seemed to have admitted blatant disregard for the OPMA from the dais at a subsequent council meeting when he said that he knew that he would have a majority at the following meeting on the issue under discussion. I asked the person next to me in the council chamber audience “How does he know that?” The answer appears to be that he routinely violates the OPMA by counting votes in serial contacts or by blatant meetings of a majority in person or by private email. These acts seem to expose these people to fine and censure. That censure should be acted upon by the council with exclusion of the votes of the apparent violators.
As for applicability of the OPMA to the UAC, several years ago this question was referred to one of the city’s multiple interim city attorneys who apparently reported that the UAC was not bound by it. At that time I looked at the law, which states that “All meetings of the governing body of a public agency shall be open and public and all persons shall be permitted to attend any meeting of the governing body of a public agency, except as otherwise provided in this chapter.” The statute says that “’Governing body’ means the multimember board, commission, committee, council, or other policy or rule-making body of a public agency, or any committee thereof when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment.” I am not a lawyer, but it seems clear enough to me that the OPMA does apply to the UAC. The UAC “acts on behalf of” the council and “takes testimony or public comment.” I would be interested to see Tim Ford’s analysis posted on the blog. In any case, this is not material, because the UAC had agreed in its rules and policies to abide by the OPMA. That they appear to have been violated here (and routinely elsewhere) is reason for fine and censure. The fact that two members of the current UAC, including Chairman Buetow, for years refused to sign city conflict of interest statements is a separate, but related issue demonstrating the standards of integrity upheld by some members of this committee.
As serious as these apparent violations of the OPMA appear to be, the most disturbing element of this exposure to me is that Mr. Bonkowski would dissemble about the authorship of “his” analysis. If lying in public is not a problem for Mr. Bonkowski, it appears to be a problem according to the city’s Ethics Program (http://www.ci.bainbridge-isl.wa.us/documents/exec/clerk/ethics/ethics_program.pdf.) There, the first of the “Ethics Principles” says that public officials have “Obligations to the Public” which include “Transparency and honesty in all public statements and written communications.” If anything is clear about this affair it seems to be that transparency and honesty have been cast aside by these members of the council and the UAC.
Having been an early and steady advocate of open and transparent government, I would like to fully agree with Mr. Samstag and Althea because I would advocate ALL municipal meeting of committees and subcommittees and ad-hoc committees and all the others organizations the City Council forms to help them with community input be subject to the Open Public Meetings Act and have minutes taken and posted.
There is considerable room for interpretation in the OPMA, and the courts have not answered all the possible questions.
One of the better discussions of the OPMA is a 2012 MRSC Publication “Open Public Meetings Act: How it applies to Washington Cities, Counties, and Special Purpose Districts.
The link:
Click to access opma12.pdf
The two germane unresolved arguments center on (1) whether the committee is a governing body and can act in some legal manner or whether the committee is advisory in nature, and (2) does taking public comments at an advisory committee meeting trump the fact that the committee is not a governing body if it can’t make independent governing decision, which clearly the Utility Advisory Committee can’t.
We have a Police Department if this is a criminal case as Althea might seem to imply, and we have an Ethics board case if it’s a City ethics code violation.
So this can be resolved in within the City’s structure, or again it just might remain blog fodder.
As a caution, there are any other number of City committees that City Council members talk to or e-mail when they are working on City business. It will be interesting to see if this expands to be a criminal or ethics case for any number of City committee members, or if this is a case of just attacking one committee (and specifically one individual running for City Council) for a Council action that was out of the ordinary and not to unnamed persons liking,
One way this debate might be locally resolved is to have the City Council draft a resolution specifically identifying what City Commissions, Committees, and all other groups put together to assist the City Council will operate under the OPMA rules, because accusations of criminal and/or ethics violations bode ill for getting people willing to volunteer their expertise to assist the City.
I cannot track down any records verifying the legal advice from an interim city attorney to which you refer—but there is this entry in the minutes from the UAC meeting on August 10, 2009:
“Open Meetings Act
City Attorney Paul McMurray briefed the committee on the Open Meetings Act and its application to this committee. He referred to RCW Chapter 42.30 and the information available on the MRSC web site as a valuable guideline. Mr. McMurray made several recommendations:
it is a great policy to treat any meeting as if it is a public meeting
make the public aware of the agenda and meeting time
four members constitute a quorum
if there is a quorum of four communicating by email, it may be a violation of the OPA; informational communication is acceptable as long as the recipients of the email do not “reply all” and start an email chain
Mr. McMurray concluded by stating the attorney general is very mindful of this law and takes a different view of the law than in the past.”
Arlene Buetow was present at that meeting.
If nothing else persuades our public officials to stop ignoring the rules, this should: The City of Shoreline has been ordered to pay $538,555 in penalties, fees and costs, plus its own attorney costs for violating the Public Records Act. Shoreline refused to release meta data on a single email that was requested under the PRA. The content of the email was released, but before the release, the deputy mayor of Shoreline deleted the portion of the email indicating the sender. Then she deleted the email itself.
The parties battled it out over seven years of litigation and appeals, during which the case went to the Washington Supreme Court and back. Yesterday a judge ordered Shoreline to pay more than $400,000 to cover the plaintiff’s legal fees and an additional $100,000 for violating the PRA.
Read the Seattle Times article here:
http://seattletimes.com/html/localnews/2021291545_metadataxml.html
Interesting judgement and major award, but a Public Records Act, not an Open Public Meeting Act decision.
And I don’t believe e-mail metadata is really germane to this particular thread, at least not yet.
I know you didn’t intend to imply there were any case similarities.
As an aside, during an Open Government Workshop held last year on Mercer Island, a well established lawyer told the audience that any one individual can bring any Washington State government jurisdiction “down” (that’s the actual word he used) by aggressively using Washington State Public Records Act laws. Attempts to limit some of the possible abuses died in this year’s legislative quagmire.
I’m not saying the Shoreline case was an abuse … quite the opposite. There clearly seems to be an attempt to hide who had written an e-mail that was read at a City Council meeting with the name of an audience member who supposedly had not sent the e-mail.
The Shoreline award decision has some possible local implications.
Shoreline is a member of Washington Cities Insurance Authority (WCIA) , the same organization that insures the City of Bainbridge Island.
Our annual insurance rates may likely increase with significant public records legal costs. City will find that out in December.
And here is another take on what happened in Shoreline (City press release, 2012) that sheds a different light in the complexities of the case:
http://shoreline.patch.com/groups/politics-and-elections/p/city-of-shoreline-seeks-to-end-six-year-old-o-neill-v1aa69f7272
Years ago, when I lived in San Mateo County California, I served on the county’s Board of Building Permits and Appeals (BBPA). Before we heard citizen complaints and appeals the county counsel briefed the entire Board on California’s open meeting law or the Brown Act. The briefings were in layman’s language and it was very clear that the peoples’ business was to be done in full public view for all to see and hear.
As a result of these briefings we learned what constituted an open meeting and more importantly what violated California’s Open Meeting Law. In our five member board a quorum constituted three members. As such we were warned that three of us having a discussion prior to the monthly board meeting, even if we were talking sports, could raise a red flag. We were cautioned not to engage in serial or rolling quorums where one member contacts two other members in turn to discuss board business or agenda items. We were cautioned against using the mail or the phone to discuss agenda items. The county counsel’s bottom line was that while one board member talking to another member about board business did not violate the state’s open meeting law, involving a third board member in the discussion opens the door for a possible violation. I assume that our newest members of the Bainbridge Island City Council received similar briefings about Washington’s Open Public Meetings Act. Apparently this information fell on deaf ears.
Like Caesar’s wife who was expected to be above suspicion, the San Mateo County Counsel advised that we too had to be above suspicion. It now seems obvious that four of Bainbridge Island’s city councilors have failed this test and are no longer above suspicion. Councilors Bonkowski, Blossom, Lester and Ward have engaged in numerous meetings and discussions outside the regularly scheduled city council meetings to conduct business away from the eyes and ears of both the public and press. This would seem to be a direct violation of Washington’s Open Public Meetings Act. Unfortunately attending regularly scheduled city council meetings is no guarantee of staying in the loop of council business because the behind the scenes dress rehearsals which are closed to the public is where the decisive business take place.
Althea Paulson summed up the council majority’s behavior in her recent letter to the council when she wrote: “From the ultra vires act of hiring Inslee Best in January of 2012, to the cutting off of council debate which earned a scathing editorial from the Bainbridge Review in March of 2012, to violations of the Governance Manual, to subjecting the City Manager to harsh public remarks that were in the nature of a performance review, the four majority council members have shown that you are often unmindful of the law, council policy, governance rules and basic courtesy.”
During this council’s tenure we have witnessed staff departures from the island’s career employees who take care of the island’s day to day business. The current council majority are thankfully not career employees and will eventually no longer be in office. Nonetheless one can only wonder how much more damage the island’s governmental infrastructure can tolerate while the “wrecking crew” remains in office?
Bob Seaby
Bainbridge Island
One thing this so called wrecking crew has partially accomplished is to get the City started down the path of fixing the three most broken programs in the City, that being the three utilities. The Streets Fund might be a close fourth place. You and I might not agree how they have gone about this, but what they have started to do is something that Kirsten Hytopoulos, Bob Scales, and Anne Blair have shown zero personal interest in doing anything meaningful … just trust the City and the status-quo hasn’t worked and still isn’t working, even with the bright hope of a new City Manager.
You might recall that’s why three of those you dislike got elected to City Council. It is a democracy type system, even on this consistently battling over something island.
The Ratepayers Alliance was wrong on a number of their lawsuit issues, but one thing that have had right all along is that the utility ratepayers have been overcharged and the City government using a disproportionate cost allocation scheme to support what should be legitimately funded with general government taxes and revenues.
Maybe you should consider focusing on the real issues … which is utilities program scope and financials, and a little less on who you personally like on the City Council.
And yes, they all have to obey Washington State’s Open Public Meeting Act rules.
Robert, I believe you have missed my point. While you and others are focused on island issues, concerns and problems I, like many others, are concerned about the process used in discussing, debating and resolving these issues. Whether it is the benefits of chip sealing our roads, the fairness of the Shoreline Master plan or the continuing brouhaha surrounding our utilities, I remain concerned about the unprofessional behavior of the council majority in dealing with these and other issues. I do not personally dislike nor like the council majority members whom I have referred to as the “wrecking crew”. More specifically however what I do not like is their contemptuous behavior, their disregard for the rules, regulations and protocol that foster order and a democratic process and their ever increasing attitude that the end justifies the means. I believe I have focused on the real issue surrounding the council majority and it is not specific agenda items; but rather the manner in which they choose to conduct themselves in dealing with these items. We were promised openness, honesty and transparency and to date these attributes have been conspicuously absent.
Bob Seaby
Bainbridge Island
I very much agree with Mr. Seaby. I am a nobody that can’t spell and screws up his grammar all the time. I increasingly feel more and more disenfranchised with every encounter I have with government.
I once was told by a Kitsap county elected official, “We are a representative democracy and as your representative you need to let me tend to the issues”. Next it will be, “you don’t need to vote, we will handle it for you”.
How government is doing whatever it does IS the issue (in my mind anyway).
I think one thing to remember about all of our City’s Commissions and Advisory Groups is just that – they are ADVISORY. They have no power to make any decisions. Not the Planning Commission, not the UAC – none of the bodies have any decision making ability.
I too have served on a California local government committee – City of Santa Monica’s Planning Commission. We all got drilled on and understood the Brown Act [open meetings] and the public records act because we had the power to make binding decisions. Our decisions could be appealed to the City Council.
On BI – only the Council has the power to make decisions – and the Hearing Examiner.
I believe we should have a robust Planning Commission but we don’t. Development issues are never even brought in front of the Council. We have, in fact, one person making crucial and basic decisions on development – the Planning Director – unelected and not responsible to the public. The lack of EIS documents which could show us – among other things – water drawdown, etc are woefully missing because they are never required of developers.
I am amused that many folks simply do not understand the form of government we have….Manager/Council government means that the Council sets policy and the Staff implements it. It does not mean that Councilmembers turn themselves into mushrooms and ‘follow’ Staff or don’t do their own research. City Managers are supposed to be made of tough stuff…..I think ours is…..and if the Council doesn’t get proper information they have every right to get their own.
Thanks for the opportunity BI Notes!
Sharon, I don’t know the law in California, but I’ve been in litigation twice under the Public Records Act in the state of Washington, both times against people who did not want their records released.
Both times I obtained the records I sought.
The standard in this state does not depend on “decision-making” power as you suggest. There is a 4-prong test instead, applied on a case-by-case basis. A court will look to see whether the committee/commission meets most of the test: 1) Does it perform a government function? (the UAC provides analysis and advice to the city government); 2) What is the level of government funding? (the UAC gets no funding from any source, but obtains assistance from city staff and resources); 3)What is the level of government involvement or regulation? (the UAC exists only to advise city government); 4)Was the entity created by the government? (the UAC was created by city ordinance).
I am confident the UAC is subject to the PRA. It is also very likely to be subject to the Open Public Meetings Act, especially as it has expanded its activities under the current chair. The UAC was given at least two briefings by prior city attorneys in which the members were told it is “unclear” whether the OPMA applies, so they were strongly advised to act as if they are. In fact, the UAC has a policy to that effect.
Additionally, apart from state law, there is a specific city ordinance as I noted above, which requires UAC meetings to be open to the public and to maintain minutes and records of its activities. See BIMC Ch. 2.33.
The bottom line is, I don’t understand why people who are purportedly serving their community would object to openness and transparency. It’s the right thing to do. It’s also the law, and city and UAC policy.
Thanks for reading, and stay tuned. More to come on public records and open meetings.
Althea,
I have sent in a Public Records Request that will test your theory. The CIty has a general policy of not acknowledging a PRR until the end of five working days, so the test is on and I’ll let you know the results.