Mayor asks that council limit e-mail discussions

Review shows members writing about issues during meetings

The OlympianJanuary 5, 2009 

  • Discussing public comments in private

    Councilmen Jeff Kingsbury and Joe Hyer had an electronic conversation on Sept. 9 about whether to extend the public comment period at a council meeting, which typically lasts 30 minutes.

    "I thought no one was going to support extending public comm(ent)?" Hyer wrote to Kingsbury.

    "Well, with this many here, I think we need to, don't you?" Kingsbury replied.

    "TJ didn't. ..." Hyer replied, referring to former Councilman TJ Johnson.

    "Why?" Kingsbury replied.

    "If the outcome is predetermined ... why bother?" Hyer replied.

    "Hmm. OK. Well, I've certainly testified in my lifetime against sinking ships. ... but, OK."

    In an interview, Hyer said the e-mail conversation was held after the fact, after the council closed public comment. Hyer said he wanted to extend the comment period to give more time to people commenting on Olympia's Nuclear Free Zone Act. But a majority of the council didn't agree.

    He said Johnson, a supporter of the nuclear-free classification, had said not to bother extending public comment because the outcome was already determined. A majority of the council eventually voted for repealing the Nuclear Free Zone.

— Mayor Doug Mah has urged Olympia City Council members to curtail their use of e-mail during council meetings after he learned that council members had e-mailed each other on council business during meetings.

Assistant Attorney General Timothy Ford wrote Mah to criticize the e-mail "deliberations," which he said were inconsistent with the state Open Public Meetings Act.

"E-mail deliberations on public matters that are concurrently being discussed in a public meeting are wholly inconsistent with the requirements of the OPMA and should cease," Ford said in his Dec. 8 letter to Mah, in response to a complaint.

He also recommended that the council restrict e-mails and personal Internet access during meetings.

In a Dec. 31 reply to Ford, Mah said he shared Ford's concerns.

The Olympian obtained council e-mails from six meetings from Sept. 9 to Nov. 3 — the period Ford reviewed. Discussions included sizing up votes and, in one case, insulting a member of the public.

Ford does not say the council is violating the open meetings act, just that its actions are inconsistent with it. But he suggests the council isn't following best practices.

"At the very least, you could say that the spirit of the law is not being followed," he said.

Council members Joan Machlis, Joe Hyer, Jeff Kingsbury, Karen Messmer, Rhenda Strub and Craig Ottavelli sent at least one e-mail to another council member at meetings during the period. Mah did not. Hyer and Kingsbury wrote most frequently.

The e-mails are reproduced with spelling and grammatical errors intact.

Setting up a vote

In several e-mails, council members discussed topics that were before the council on the given night. In an exchange on Sept. 23, Kingsbury appeared to try to line up enough votes to release a property from the moratorium on development in Chambers Basin in southeast Olympia.

He wrote to Hyer, "Are you comfortable if I make a motion removing the Kramer property from the moratorium area, and I think I can get (Councilman) Craig (Ottavelli) to second. And, do you support that? We haven't had a chance to talk, but I am ready to do that."

About a minute later, he wrote to Ottavelli: "If I move to remove the Kramer property from the moratorium area, will you second? Or are you on that page. We have at least 4 if you are."

Kingsbury was referring to four votes, the minimum needed to pass a measure.

Ottavelli responded that he was willing to take action, but preferred waiting until the council took action on a comprehensive plan amendment that would resolve the Chambers Basin moratorium.

"In short, I think we can act more decisively and with more clarity if we wait just a few weeks," he wrote.

Hyer's response later was similar. He said the council would deliberate on the issue in two weeks, not long to wait.

"Doug and I talked. ... I am uncomfortable ... because we are just weeks away from deliberating on the rezone. I think it is more appropriate to determine what it can develop to in that process, then release if we choose to."

Kingsbury said in an interview that he did nothing improper. But because of the negative public perception, he said he would agree to a policy that restricts e-mails to other council members during public meetings.

"I think that it's a relatively easy fix," he said.

But Hyer said Kingsbury's question about votes was inappropriate. "When people start talking about lining up votes, I do think it's inappropriate and we shouldn't do that," he said.

In an interview, he said that sending some e-mails in a public meeting is appropriate.

Ottavelli said he doesn't know whether it was appropriate for Kingsbury to ask him about seconding a motion. He said he'd rather not receive such an e-mail.

There are a couple of other examples of e-mails in which votes were discussed.

"You're seconding?" Kingsbury wrote to Councilman Joe Hyer during a council meeting on Sept. 9.

"Only if I HAVE to, and no one else will. ..," Hyer replied.

Later that night, Kingsbury wrote to Councilwoman Karen Messmer, "Doug is goin(g) to ask for a motion since you moved it to other business. You need to chime in."

In an interview, Messmer declined to comment on the e-mails, saying it is a "legality issue."

Derogatory comment

In one instance, the commentary turned to a member of the public. During the Oct. 14 meeting, in an e-mail to Ottavelli, Kingsbury made a derisive comment about Gerald Reilly, a member of a citizen's group that wants to turn much of the area between Capitol Lake and Budd Inlet into a park.

"Jerry Reilly can't even look anyone in the eye. Coward," Kingsbury wrote.

Asked about the comment in an interview, Reilly said, "I find it ironic to accuse someone of being a coward from the safety of your own anonymity."

Reilly continued, "At a minimum, it would indicate less than full attention to the public business being discussed."

Kingsbury said Reilly was a friend and he wouldn't comment on the e-mail.

How e-mails emerged

Ford, the assistant attorney general, got involved after he received a complaint from Steven Segall, a Thurston County resident. Segall requested from the city copies of council members' e-mails and Internet-use logs for six City Council meetings from Sept. 9 to Nov. 3. Upon receiving the material, Segall provided the Attorney General's Office with "numerous examples of public records he obtained where city council members were deliberating public business by e-mail during a public meeting," according to Ford's letter.

Segall, a state worker, said in an interview that he made an open records request because he thought council members weren't responsive to the will of the people on issues such as keeping the Nuclear Free Zone Act and not allowing taller buildings between Capitol Lake and Budd Inlet.

His curiousity was piqued when it came to light that Kingsbury called an Olympia resident "an idiot" during a conversation on Facebook, an online social networking site. He concluded that council members weren't listening to the public and had their minds made up.

The results of his request dismayed him.

"There seemed to be an awful lot of communication during a public meeting that was not public," he said. "It goes to the heart of the issue of, 'Were their minds already made up?' "

New policy called for

Olympia should restrict e-mail and personal Internet use during council meetings, Ford said in his letter.

"Not only would it ensure that the public is able to witness all the deliberations of the council, but it would instill confidence with the public that the council members are attentive to the public's business."

In an interview, Ford said his letter is advice, not binding. "I never really make any findings or conclusions of law because I'm not a judge."

The Open Public Meetings Act says meetings with a quorum of council members should be public, with limited exemptions. "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," it says.

Toby Nixon, president of the Washington Coalition for Open Government, said he will ask his board to look into the Olympia situation. He said it "absolutely" violates the spirit of the open meetings act. The coalition is a bipartisan group that promotes open government.

Changing times

Every council member has a laptop computer with wireless Internet access. Mah said council members have had laptops for at least four years.

He said the council primarily uses the laptops to review the council packet — dozens of pages of ordinances and staff reports that prepare council members to make votes. Rather than copy reams of paper, the information is delivered on the city's Web site, where the council members, and anyone with Internet access, can see them.

Council reaction

Mah said he will refer the issue to the council's General Government Committee. Several council members agreed the council should look at the e-mail issue.

Strub said she's sure the council will discuss it at its annual retreat, which is next weekend. But when asked about the e-mails, Strub said, "I think it's entirely up to each council member how they conduct themselves."

She added that "we may have a different perspective on what is deliberation." When Kingsbury wrote about getting a second and getting four votes, she referred to it as "housekeeping," not deliberation. "Procedurally ... that's not trying to persuade anybody," she said.

And she chided Segall for his request, saying that he doesn't live in Olympia. "He's just meddling in something that, frankly, is none of his business," she said.

Messmer said the issue is "worthy of a discussion amongst the council."

Machlis said she thinks the e-mail conversations are "sloppiness," not an intentional violation. But she would "very much like to discuss" the issue.

"I think that we have an obligation to be absolutely professional in our meetings and if ... there's a feeling that we're hiding information in some way ... by the use of laptops, I definitely don't think that's what our council wants to represent to the public," Machlis said.

Matt Batcheldor covers the city of Olympia for The Olympian. He can be reached at 360-704-6869 or mbatcheldor@theolympian.com.

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