The following article of mine was published by Inside Bainbridge on July 18, 2013. I am re-publishing it here to have it archived on my blog.
Documents released by the city pursuant to a public records request reveal that Arlene Buetow, Central Ward City Council candidate, lobbied four members of the Council at their private e-mail addresses on behalf of her homeowners’ association. Shortly after she sent three e-mails to the four requesting an exemption from the city’s business licensing requirements, Councilmember Dave Ward made a motion to do just that at a regularly scheduled council meeting.
On April 14, Buetow sent an e-mail to the personal e-mail addresses of Councilmembers Steven Bonkowski, Sarah Blossom, Debbi Lester, and Ward—who constitute a quorum of the Council—attaching a memo explaining her objections to a recently adopted ordinance that included homeowners’ associations among those entities that must obtain a business license. Buetow, who identified herself as president of the Tiffany Meadows Homeowners’ Association, said the license requirement subjected homeowners’ associations (HOAs) to “superfluous and unnecessary staff review.” She argued that the Council never meant to include HOAs in its ordinance.
On April 15, she sent another message to the four Councilmembers at their personal e-mails, writing, “Dave Ward asked me to provide details on the timing of this Ordinance through Council and how that relates to the Notice being sent out to the ‘affected parties.’” She attached portions of previous Council minutes at which the licensing provisions were considered and adopted.
Although I submitted a Public Records Act request for Councilmembers’ e-mail records, as of July 17 I had received no records showing how Ward communicated his request to Buetow. In fact, I have not received any e-mails from Bonkowski, Lester, or Ward on the topic of the HOA business licensing provision.
On April 23, Buetow sent another e-mail to all four of the Councilmembers, again to their personal e-mails:
Hello All, Since from City manager Doug Shultz’s comments at the Ward meeting last night I conclude he sees no reason why the City would not want to catch HOA’s in their efforts to license non profit businesses and since I think this is a waste of City time and resources, any chance you folks are interested in directing Doug to amend the ordinance to exempt HOA’s as per my original request?
The next night, April 24, Ward made the following motion at the regularly scheduled Council meeting: “I move that we specifically make a note in the business license language that excludes homeowners’ associations and condo owners’ associations from the business license requirement.” The topic was not on the agenda posted on the city’s website.
Blossom seconded the motion. The discussion can be viewed on the city’s meeting video here, starting at about the 27:09 mark.
Lester began the discussion by expressing her desire to make a minor modification to the city’s business licensing ordinance.
Ward responded by saying, “I think as long as we’re making modifications to that, I think this would be an opportune time to specifically exclude homeowners’ associations and condo associations. There’s been a lot of complaints about that. I think some members of the staff anyway feel that that kind of casts the net a little bit broader than was originally intended.”
The City Manager and City Staff expressed reservations about the motions. Lester, Bonkowski, Ward, and Blossom indicated support of Ward’s motion, with the last three in particular putting forth arguments in favor of it, mirroring those Buetow had presented in her memo.
By contrast, Councilmembers Anne Blair, Bob Scales, and Kirsten Hytopoulos, none of whom were included in the Buetow communication, seemed baffled by Ward’s motion.
Scales said, “I’m going to vote no on this one just as I did the last one primarily because this is listed under New Business. There are no materials in our packet. . . . We’re just sort of doing things on the fly. I would appreciate a little more thought and analysis to go into things before we amend an ordinance, which is rather a significant thing.”
“I don’t know enough about it,” Blair said. “At this point I will oppose it.”
At no point did any of the four Councilmembers mention the Buetow correspondence or provide the Buetow memo to the entire Council for its information and review. After an extended discussion, Blossom suggested they delay consideration for a later meeting. Ward withdrew the motion.
Violation of the OPMA?
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 public 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. (Open Public Meetings Act, RCW 42.30.010)
The State Open Public Meetings Act (OPMA), which is designed to ensure that all public offices’ and agencies’ “actions be taken openly and that their deliberations be conducted openly,” does not limit the term “action” to final decisions or votes. The statute defines a government “action” this way: ”[T]he 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 action” (RCW 42.30.020, emphasis supplied).
A 2001 court case held that e-mail exchanges qualify as a meeting (Wood v. Battle Ground School Dist.). By their actions and statements at the April 24 Council meeting, it would seem that the four Councilmembers did, at the least, consider, review, and evaluate the HOA exemption to a city ordinance—i.e., official city business—prior to the public meeting, pursuant to the Buetow e-mails, which was followed swiftly by an effort to take final action via Council motion. Their remarks at the meeting, at which the full Council was not given background material or information on the topic, strongly suggest the four had already arrived at a meeting of the minds before Ward made the motion.
Finally, this was all done from private e-mails. I asked the city to check twice. Bonkowski, Ward, and Lester have never forwarded these e-mails to their City account as required by state law and city policy. The Public Records Act (PRA) provides that a public record is “any writing containing information relating to the conduct of government,” which must be produced to a requester (with certain limited exceptions). The city has a record of the e-mails only because Blossom produced them in the beginning of July in response to my record request.
In addition, per Section 3.8.1 of the city’s Governance Manual, “It is hereby the policy of the City that elected and other city officials shall do nothing to hinder the City’s obligation to possess, retain, and store public records.” Section 3.8.2 requires that “each email that contains information relating to the conduct of the government” be forwarded to the “city-maintained e-mail system.” Officials also must “cease utilizing any private, public, or proprietary e-mail service other than the City’s for the sending or receiving of any such e-mails that meet the definition of public records.”
This is not a case of minor forgetfulness or slight rule bending. Behind-the-scenes governing is precisely the kind of activity the open government laws were designed to prevent.
Here are the relevant e-mails. Note that the headers show Blossom as the sender, and the sent date is July 2. These headers indicate when Blossom turned the e-mails over to the city, not when the original e-mails were sent and by whom. To see the e-mails themselves, scroll down beyond the header in each one.
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