Arthur West, a perpetual litigant in open-government cases, quietly filed his lawsuit against the city on June 14 — the same day that Seattle-based attorney James Egan, represented by two high-profile trial attorneys, sued the city over the same issue.
An Olympia-based open-government activist behind yet another lawsuit claiming Seattle City Council members violated Washington’s Open Public Meetings Act before hastily repealing a controversial business head tax this past month has proposed his own settlement offer to City Attorney Pete Holmes:
Admit that the city broke the law and fix it — or I’ll see you in court.
Arthur West, 57, a perpetual litigant in public-records and open-meetings cases, quietly filed his lawsuit against the city June 14 — the same day that Seattle-based attorney James Egan, represented by two high-profile trial attorneys, sued the city over the same issue.
West has not yet formally served his suit on the city, and Holmes’ office said it wasn’t even aware of it until receiving a formal letter from West’s lawyer late Monday that detailed West’s offer to drop his pursuit of any fines or legal costs if the city acknowledges it broke the law.
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“If the city wants to admit it violated the act, accept it and move on, that’s fine with me,” West said about his offer Tuesday. “Otherwise, we can spend years in court fighting this — which I’ve done previously against many others — and I don’t think they will win in the end.”
West said he learned from a Seattle Times story this past week that Holmes had made an “offer of judgment” to settle Egan’s lawsuit by paying $4,001 in city funds to cover all potential civil penalties facing Seattle officials for allegedly breaking the open-meetings law. But under that offer to Egan, the city would not admit wrongdoing. As expected, Egan said Thursday he has rejected Holmes’ offer.
In turn, West said he instructed his Olympia attorney Jon Cushman to send his own offer to Holmes. It emphasizes West’s motivation as seeking to address “public accountability and open public decision-making procedure.”
“To this end, I have been instructed to tender the above offer and to decline, at this time, any alternate offer by the City that fails to acknowledge that the Seattle City Council violated the Open Public Meetings Act,” Cushman’s July 2 letter to Holmes added.
West’s offer will remain open to the city for one week.
Dan Nolte, a spokesman for Holmes, said Tuesday the city attorney’s office is now “assessing the case and reviewing our options.” He declined further comment.
Both lawsuits contend the city knowingly broke the state’s open-meetings law when council members secretly deliberated to repeal Seattle’s new head-tax ordinance before holding discussions 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 annual tax on 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 homeless services and low-income housing.
Mayor Jenny 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 motivation for reconsidering the ordinance.
Several council members later said they had discussed negative public polling and other challenges facing the head-tax law among themselves and with the mayor’s office in the days before the public vote.
Washington’s open-meetings law, which aims to prevent backroom dealing and give the public a seat at the decision-making table, requires a government body’s “actions be taken openly and that their deliberations be conducted openly.” Under the law “any person may commence an action” to stop a government body from breaking the law.
Even before the city’s special meeting and vote, several open-government advocates said that city officials appeared to have broken the law. After the vote, Holmes wrote a legal analysis denying that, though it didn’t delve into questions about officials’ private discussions before the public vote.
Despite the city’s legal opinion, the No Tax on Jobs campaign to place a citywide repeal referendum on the ballot turned in more than 46,000 signatures by a June 14 deadline. The city clerk said there was no need to forward the petitions to election officials because the city already had repealed the tax law.
West’s lawsuit differs from Egan’s in several key ways that may complicate the city’s defense against claims it broke the meetings law. Egan’s suit seeks only that $500 civil penalties be imposed against each official for allegedly breaking the law; West’s suit seeks such fines, but it also wants a court to rule the city deliberately broke the law and to invalidate the council’s repeal vote.
West, 57, who has won several significant court opinions and garnered various six-figure judgments and settlements in his past lawsuits, said he views Holmes’ offer to settle Egan’s case as a shrewd ploy aimed to silence that suit even if Egan rejects it.
West points out that prevailing case law “affords complete relief” to a defendant that makes a Rule 68 offer of judgment for the full amount of damages to which a claim is entitled by law, plus reasonable legal fees and costs.
In Egan’s case, Holmes’ offer of $4,001 exceeds by $1 the collective amount in damages that can be awarded through $500 fines against each of the eight named council members even should Egan reject the offer and take the case to trial. By also offering reasonable attorney’s fees, West believes a court can now rule Holmes’ offer would have fully satisfied Egan’s claim, effectively rendering any further dispute moot.
West said his lawsuit isn’t susceptible to such a dismissal because it doesn’t solely seek monetary damages.
“I want the city to realize that this isn’t about the money,” West said. “The issue is about the violation, and it’s not going away until that gets addressed.”
Egan said this week he “appreciates Mr. West’s presence in this matter,” calling Holmes “a crafty adversary” who “puts me in a tough position.”
He added Holmes’ since-rejected offer creates a situation where even if Egan wins the case, he may end up on the hook for hundreds of thousands of dollars in legal costs and fees for pursuing the case. Still, he said it’s worth it on open government principles, and by pushing the case forward, Egan said he intends to obtain emails or other records that expose the city’s alleged wrongdoing.
“Something is awry in their decision-making processes is my impression,” he said. “Citizens can’t participate in their government if their so-called public officials, through collusion, vote-rigging and secret meetings, are allowed to turn the lights off on democracy.”