The offer by City Attorney Pete Holmes would cover any civil fines for breaking the law, but the city wouldn’t admit that it actually did so before the June 12 council vote to repeal the head tax.
Seattle City Attorney Pete Holmes has offered to pay $4,001 in city funds to settle a lawsuit that contends eight City Council members and Mayor Jenny Durkan broke the state’s Open Public Meetings Act this month by secretly deciding to repeal a controversial head tax on big businesses before a public meeting and vote.
Under the terms of the offer — a copy of which was provided to The Seattle Times by the lawsuit’s plaintiff, James Egan — the payment would cover any civil fines for breaking the law, but the city wouldn’t admit that it actually did so.
Egan, a Seattle-based attorney, said Holmes recently met with and extended the offer to lawyer Lincoln Beauregard, who, along with partner Julie Kays, is representing Egan.
Beauregard said Friday he quickly sent a response letter that reflected Egan’s attitude about the offer, informing Holmes they wouldn’t accept it. But Egan added he hadn’t yet read the letter before it was sent, so he doesn’t view it as an official rejection. Egan said he’s still weighing whether to accept the offer, claiming he’ll make that decision based on the public feedback he receives.
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“Mr. Holmes has offered an exit strategy for these council members by using taxpayers dollars,” Egan said. “I don’t think it’s right, but let’s just get it out there and see what the people think.”
He added the fines for breaking the law “should be coming out of these council members’ own pocket.”
After initially declining to comment Thursday, Holmes, in a statement Friday said his office does “not believe that Seattle City Councilmembers violated the Open Public Meetings Act, and we do not believe Mr. Egan has a case.”
Holmes added that an Offer of Judgment, such as the one he extended to Egan, “is a commonly used procedural tool, which by court rule can place the risk of future litigation costs on a party that rejects the offer.”
“I never intended to engage publicly in this lawsuit outside of the courtroom or outside discussions with the plaintiff’s attorney,” Holmes’ statement added, “but in this case I felt compelled to clarify the meaning behind a Rule 68 Offer of Judgment.”
Egan and his lawyers filed the lawsuit this month, contending the mayor and named council members “repeatedly violated” the state’s open-meetings law by undertaking “unlawful clandestine discussions” when deciding to repeal the controversial head-tax ordinance before holding deliberations and a vote on the issue in public.
By a 7-to-2 vote at an abruptly called special meeting June 12, the council repealed the $275 per employee, per year head tax that would apply to the 585 largest businesses in the city. The council had unanimously approved the tax less than a month earlier, with the ordinance set to take effect in January and expected to raise about $47 million a year for low-income housing and homeless services.
Durkan and all seven council members who voted to revoke the tax issued a joint statement the day before the special meeting, citing a “prolonged, expensive political fight” as a driver for reconsidering the ordinance.
Some council members later said that they had discussed negative public polling and other issues spelling trouble for the head-tax law among themselves and with the mayor or her deputy in the days before the public vote.
Washington’s open-meetings law, which aims to eliminate backroom dealing and give the public a seat at the decision-making table, requires that a government body’s “actions be taken openly and that their deliberations be conducted openly.”
The way the city handled the repeal process quickly raised questions among open-government advocates, who said the elected officials appeared to have secretly deliberated in violation of the law.
After Egan sued and an anti-tax referendum campaign spearheaded by big businesses raised questions privately about the legality of the council’s vote, Durkan’s office released a legal analysis from Holmes contending the city hadn’t broken the law.
Holmes’ analysis said the city’s advance public notices met deadline requirements, and the meeting and vote provided an “open public process” for citizens and the media.
Despite the city’s legal position, the “No Tax on Jobs” repeal campaign, largely bankrolled by Amazon, Vulcan and the grocery industry, turned in more than 46,000 signatures to the city clerk to beat a deadline for qualifying a citywide ballot referendum on the head tax “out of an abundance of caution.”
City Clerk Monica Martinez Simmons said she didn’t plan to forward the petitions to county elections officials because the city already had repealed the tax ordinance.
Holmes’ legal analysis didn’t delve into whether the city officials’ private discussions before the meeting and vote complied with the law.
If Egan accepts the city’s offer, that question would remain unresolved.
According to the two-page “Offer of Judgment,” the city would agree to allow a court to enter judgment against it for $4,001, “which shall constitute civil penalties” for violating the public meetings law. The city also would agree to pay any “reasonable attorneys’ fees, incurred to date” — an amount that would be determined later by the court, the document states.
But, the document adds, “This offer does not constitute an admission of liability or violation of the Open Public Meetings Act.”
Even when a governing body is found in violation of the law, the consequences are few. Courts can nullify votes taken during illegal meetings, but a council can hold another public meeting and vote that comply with the law and result in the same outcome.
Civil penalties also can be imposed against “each member of a governing body” who knowingly violates the law, with fines of $500 each for a first offense and $1,000 for any successive violation. Violators are supposed to face “personal liability” for such fines. As the city’s executive, Durkan is not a member of Seattle’s “governing body” so may not be subject to such a fine.
The amount offered by Holmes to settle the case collectively would cover $500 fines for at least eight of the nine city officials named in Egan’s suit, but doesn’t specify which officials. The suit names the mayor and Councilmembers Bruce Harrell, Sally Bagshaw, M. Lorena González, Lisa Herbold, Rob Johnson, Debora Juarez, Teresa Mosqueda and Mike O’Brien. The only councilmember not named in Egan’s complaint is Kshama Sawant, who apparently wasn’t privy to the special meeting before it was publicly announced.
Egan said he and his attorneys challenged the council on behalf of himself and other citizens because they were “cheated out of democracy” by the council, adding any legal fees or costs they might recover would be donated. He added that he personally disagrees with the city’s offer because it uses public funds while admitting no wrongdoing.
“And if this doesn’t constitute a violation of the Open Public Meetings Act, then why are you paying this money,” he asked. “That doesn’t fly with me.”
The offer, dated June 26, is good for 10 days. If it’s not accepted by then, the city would rescind it and any agreement to cover Egan’s legal costs should he push the case forward. A trial date has been set for June 2019.
Correction: An earlier version of this story excluded City Councilmember Teresa Mosqueda among city officials named as potentially liable parties in James Egan’s lawsuit. Mosqueda voted against the head-tax repeal and wasn’t among the council members who issued a joint statement with Mayor Jenny Durkan before the special meeting, but the lawsuit alleges she violated the public meetings law with the others.