Economic council met illegally

State body: Members decided to hire director without first announcing meeting

bshannon@theolympian.comSeptember 8, 2012 

The state’s Economic and Revenue Forecast Council hired a new permanent director this week, but only after holding interviews that violated the state Open Public Meetings Act.

The seven-member council, which includes top legislators and state agency directors, went into closed-door sessions, which are allowed under the law for discussing personnel matters.

But the council failed to first issue public notice that they were convening a quorum of members for the purpose of interviewing three finalists for the roughly $140,000-a-year job.

Instead, council chairman Ed Orcutt and four others went straight into private sessions, bringing along some staffers.

Moreover, the forecast council came to enough of an agreement behind closed doors that Orcutt put out an Aug. 31 news release saying that interim director Steve Lerch would become the new permanent director once the council was able to vote in public on his hiring.

“We couldn’t have made a better choice,” Orcutt said in the release.

Lerch was judged the best of 17 applicants. His hiring was made official at a public meeting Thursday.

Toby Nixon, president of the Washington Coalition for Open Government and a former state lawmaker, said the council’s earlier sessions clearly violated the public meetings law.

“If they have a quorum of the entire board there, then it is a meeting of the board. There is a very clear attorney general opinion about that,” Nixon explained.

Nixon added that to have such an executive session, the council would have had to advertise a regular meeting, then announced publicly during the meeting that members would be going into a special session – while also explaining the purpose of that session and how long it would last.

Once in an executive session, the members’ actions would be limited.

“There is absolutely clear case law that they can’t make the final decision in executive session, and they can’t really do a straw poll to try to narrow the field in an executive session,” Nixon said. “(I)t’s obvious they did that – because they published a news release, even if it was accidental, before the meeting. They clearly violated the open meetings act.’’

A court can impose fines of up to $100 per person for violations of the meetings law, but that rarely happens.

Both Orcutt and Rep. Ross Hunter, D-Medina and chairman of the House budget committee, initially defended the council’s actions. “We had to count the votes. That’s what you do in executive session,” Hunter said.

But he apparently was confusing “executive sessions” that the Legislature’s caucuses hold to determine strategy and vote counts with the “executive sessions” held by bodies governed by the open meetings act.

The Legislature has exempted itself from the meetings law, although boards and commissions like the forecast council are not specifically exempted.

Orcutt also argued the council hadn’t had an executive session, believing it was an interview panel – not a meeting of the council.

Hunter later said he agreed with a reporter’s objections – that a quorum of council members had met without public notice. But Hunter said he did not think the hiring decision – which Orcutt now must complete by negotiating a contract with Lerch – is in legal peril.

State budget director Marty Brown, who served his final meeting on the council this week as he moves to a new job, also said he thought there should have been better notice of the meeting.

Orcutt did not acknowledge the process was flawed, but said he would seek legal advice in the future.

Brown, Hunter and Orcutt all attended the interviews, at which state revenue director Brad Flaherty and state treasurer Jim McIntire also were present. Others in the room included stand-ins for two state senators on the council, Dino Rossi and Ed Murray.

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