The records that have surfaced are significant, two open-government advocates said this week, because they appear to demonstrate that mostthe council secretly conferred to take action on official business — a clear violation of the state’s Open Public Meetings Act.
Records have emerged showing the Seattle mayor’s office and a City Council staffer privately conveyed to individual council members information about where a majority of their colleagues stood on issues related to the repeal of the controversial business head tax before a public meeting on the issue.
Those records include text exchanges between Deputy Mayor Shefali Ranganathan and Councilmember Rob Johnson two days before the June 12 vote, and a tally sheet of council members’ positions for joining the mayor in a public statement shared with Councilmember M. Lorena González a day before.
The records weren’t turned over by the city in discovery requests in a lawsuit alleging the city violated the state’s public-meetings act, potentially scuttling a settlement of the suit, according to a lawyer for one of the plaintiffs. The city also didn’t disclose the records in response to a public-disclosure request by The Seattle Times.
The new records — obtained by a local blogger this month as part of hundreds of documents released in response to his request about public polling on the head-tax issue — were provided this week to The Times, which verified them with city officials.
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Dan Nolte, a spokesman for City Attorney Pete Holmes, acknowledged Thursday the city had yet to turn over the records as part of legal discovery to James Egan, one of the two plaintiffs now suing the city. But Nolte said the city planned to do so soon, saying it previously informed Egan’s attorneys that “discovery and investigation of the facts relevant to this case is ongoing.”
“Anyone with a basic understanding of the litigation process would know that discovery is produced in installments,” Nolte wrote in an email. “We’re in the midst of producing our next set of responsive documents (nearly a thousand pages) that will be sent to Mr. Egan in the near future, which includes the texts in question. There will likely be more to produce after that.”
But after seeing the records Thursday, Lincoln Beauregard, a lawyer representing Egan, said it appears the city deliberately withheld “smoking gun” documents from a batch of records it provided him earlier this month, noting Holmes’ office previously divulged other texts involving Ranganathan.
After receiving the city’s “less damaging” discovery responses Aug. 8, Beauregard said he discussed a possible settlement with the City Attorney’s Office.
“It seems pretty clear to me now that they were trying to engage in a settlement discussion with us before we got this damning information,” said Beauregard, adding Egan may reconsider settling the case.
The city’s written responses to Egan’s interrogatories — a set of formal legal questions that accompanied his discovery requests for records — describe several discussions among the mayor’s staff and council members that occurred before the repeal vote, but they don’t reference the text discussions documented in the excluded records, Beauregard added.
“They never gave me any indication of any additional documents,” Beauregard said.
A second plaintiff suing the city, Arthur West, said Thursday he has yet to seek discovery.
The city also did not disclose the records to The Times when responding to a June 11 public-records request seeking “any and all written communications” related to the head-tax issue. The city provided to The Times on July 31 the same batch of text messages it later disclosed to Egan and informed the newspaper: “This completes the City’s response and closes your request.”
The Times has since appealed the request’s closure.
The records previously released to Egan and the newspaper suggest the city — through conversations between the mayor’s office and council members — may have broken the state’s Open Public Meetings Act (OPMA) but don’t directly show a violation.
The city records that have since surfaced are significant, two open-government advocates said this week, because they appear to demonstrate a majority of the council secretly conferred to take action on official business — which would be a clear violation of the law.
After reading a story about the previously disclosed records this past week, Kevin Schofield, who blogs about City Council issues, emailed The Times about a text exchange between Ranganathan and Johnson that the city had released to him Aug. 10.
The exchange shows that on June 10, Deputy Mayor Ranganathan texted Councilmember Johnson: “Did you get (Deputy Mayor) Mike Fong’s message. Are you around?”
“Yes,” Johnson replied. “ … Happy to catch up tomorrow if you want.”
“Have you seen the EHT poll,” Ranganathan responds, referring to the Employee Hours Tax. “Don’t want to surprise you. EHT is DOA. Mayor wants to call for a repeal tomorrow am. We have been trying to reach folks yesterday and today to talk through.”
The deputy mayor then added: “LG, MoB, LH, DJ and SB are likely ready to move forward with a repeal and reset,” referring to Councilmembers González, Mike O’Brien, Lisa Herbold, Debora Juarez and Sally Bagshaw.
Reached Thursday, Johnson said he turned over copies of the text exchange, along with all other records related to the head-tax repeal that he had, to the City Attorney’s Office several weeks ago. He added he doesn’t know why the records weren’t disclosed during Egan’s discovery.
“I am certain that I would have turned it over to the city attorney,” Johnson said. “Absolutely.”
Among other records provided to Schofield was a text exchange between González and her assistant, Cody Reiter, about a joint statement explaining the need for considering a head-tax repeal that Mayor Jenny Durkan sought to put out on June 11 — a day before the council’s public meeting on the issue
Referring to Durkan, the city’s 56th mayor, Reiter texted: “56 wants to send the statement out well before noon. I’m worried about her doing so before CMs have weighed in on the statement.”
Later, Reiter texted an image of a typed tally sheet marked “Vote Counts” that listed all council members in alphabetical order, with boxes beside them under columns headed “Approve,” Decline” and “Other.” Pen marks checked the “Approve” boxes by Councilmembers Bruce Harrell’s, Herbold’s, Johnson’s and O’Brien’s names, with the “approve” boxes circled with the note “Assuming yes” by Bagshaw’s and Juarez’s names.
The “Other” box is marked with a question mark by Councilmember Teresa Mosqueda’s name, with the “Decline” box circled and notated “assuming,” by Councilmember Kshama Sawant’s. All boxes next to González’s name were unmarked.
After sending the image, Reiter texted that the council’s communications director, Dana Robinson Slote, would be “sending a list of cosigning CMs to MO in 4 min.”
“I’m a yes,” González texted back.
Reiter’s tally proved accurate. The six council members marked “approved” joined González in adding their names to Durkan’s joint statement, which was issued later that day. All seven also formally voted the next day to repeal the head-tax measure, with Mosqueda and Sawant voting against it.
The vote marked an abrupt reversal on the yearly $275-per-employee tax that would have been imposed on nearly 600 of the largest businesses in the city. The ordinance, which sought to raise $47 million per year for homeless services and low-income housing, had long been in the works and was unanimously approved less than a month earlier.
On Thursday, González said in an email that Reiter’s tally sheet “was not a tally of votes on the EHT repeal.”
“It was my legislative assistant’s attempt at tracking — for himself — who he believed would sign onto the press statement,” she said. “He did not do this at my direction and I do not recall seeing it until after the press release was sent to the media.”
González’s response is time-marked at least an hour before the joint statement was distributed, however.
Washington’s open-meetings law, which aims to prevent backroom dealing and give the public a seat at the decision-making table, requires the majority of a government body’s “actions be taken openly and that their deliberations be conducted openly.”
According to training materials on the law previously provided to at least some council members, an action isn’t limited to final actions, such as votes, and discussions via emails, texts, phone calls or small groups that create a “walking majority” through a daisy chain may constitute a meeting subject to the law.
Toby Nixon, president of the Washington Coalition for Open Government, added, “The moment the positions of four council members were conveyed to a fifth council member, an illegal serial meeting of the City Council occurred.”
Open-government attorney Katherine George said the text exchange is so significant it could result in a ruling “that clarifies when secret polling violates the OPMA.”
Nolte, the city attorney’s spokesman, responded Thursday: “Based on the status of the current investigation of the facts, we continue to believe no OPMA violation occurred.”