Attorney tells Stewart workshop was A-OK

Vancouver City Councilor Jeanne Stewart sent an email last Monday saying the council violated city policy on Sept. 13, 2010, when they made a decision on how its three C-Tran board members would vote on a sales tax measure.

In the meeting, the council agreed they wanted the members to to keep the light rail and bus rapid transit sales tax vote together with the bus service sales tax vote.

Stewart was kicked off the C-Tran board in January for ignoring that decision and instead voting to split the two measures.

Workshops aren’t for policy decisions, she argued, and thusly “my removal from the C Tran Board was unjustified and punitive.”

But City Attorney Ted Gathe wrote back last Friday that the state’s Open Public Meetings Act has no provision “that would prohibit the City Council from either taking action or taking final action on an item at a council workshop.”

And while the city council’s policy prohibits “formal” action at workshops, Gathe found that a consensus decision on how to vote at C-Tran was not a violation of that policy.

“It is and has been common practice for many years for Council through the consensus of its members to take action at workshop meetings,” he wrote. “One example that is somewhat analogous to the C-TRAN scenario is the adoption of the Council’s annual legislative agenda.”

He said that in regards to the C-Tran vote, the mayor held no motion or formal vote, rather the council “coalesced” around one of the proposed ballot measures.

Stewart said Monday she “might not agree” with Gathe’s legal opinion, and is still deciding what her next move might be.

Here’s Ted Gathe’s full March 25 email:

Mayor and Council:

In a March 21, 2011 e-mail, Councilmember Stewart contends that certain actions taken by the City Council on September 13, 2010 at the conclusion of a workshop on the subject of the C-TRAN Board’s consideration of future ballot options for bus and transit funding were in violation of Council Policy 100-32 Section 5.8 and that therefore, Council had no authority to remove her in her capacity as a City representative on the C-TRAN Board. Our office has been asked to provide a legal opinion on this issue.

In advance of preparing this opinion, I reviewed the Council Minutes for September 13, 2010 and viewed the CVTV video of the September 13, 2010 Workshop. The relevant Council Policies are 100-32 City Council Meetings and 100-33 City Council Appointments to Boards and Commissions.

The State’s Open Public Meetings Law (OPMA) – Ch. 42.30 RCW- provides the basic framework for the conduct of business by a public agency and requires that all meetings of the governing body of a public agency be open to the public. In defining what constitutes a meeting, the OPMA states that a meeting occurs when action is taken. Action is further defined to include discussion, deliberations, considerations, reviews, evaluations as well as what is defined as final action. The OPMA recognizes two kinds of meetings, regular meetings and special meetings. A regular meeting is one where the agency has established a formally adopted meeting schedule. A special meeting is one that is called on a one time basis for some specified purpose. City Council workshops are routinely held on a regular basis through a formally adopted schedule and would be considered to be part of the regular meetings of the City Council. There is no provision in the OPMA that would prohibit the City Council from either taking action or taking final action on an item at a council workshop. It is important, however, to differentiate between regular Council meetings including workshops and executive sessions where the OPMA prohibits the Council from taking any final action.

Although not required by the OPMA, beginning in 1999 and continuing thereafter, City Council adopted a series of policies and procedures governing their roles and responsibilities and the conduct of City business. Policy 100-32 was initially adopted in 1999 and has been amended five times since it was approved, the most recent amendment being March 21, 2010. The relevant portion of Policy 100-32 Section 5.8 reads as follows:

During these workshop] meetings, items needing in-depth discussion are introduced and reviewed. No formal action is taken at workshops.

Since the OPMA does not restrict Council from taking action at a workshop session, the legal issue presented is whether the action taken by Council in providing direction to its representatives on the C-TRAN Board constituted “formal” action as that term is used in the Council Policy cited above.

It is and has been common practice for many years for Council through the consensus of its members to take action at workshop meetings. Such action frequently includes policy direction to the City Manager and staff to perform tasks, prepare ordinances and resolutions for adoption and a host of other directory actions. One example that is somewhat analogous to the C-TRAN scenario is the adoption of the Council’s annual legislative agenda. The proposed agenda is discussed by Council at one or more workshop sessions and then adopted by consensus of the Council at the conclusion of the final workshop. Such adoption is then directory to the City Manager, staff and the City’s governmental relations representative. Likewise, the published agendas for Council meetings contain no statement to the effect that workshop sessions do not include action items.

A review of the September 13, 2010 Council workshop on C-TRAN ballot measure options indicate that Council was under the initial belief that this subject would be discussed as an informational item during the next day’s C-TRAN board meeting and that the Council needed to provide direction to its representatives on the C-TRAN Board on this subject in advance of that discussion. The Mayor and various Councilmembers used terms such as “providing a recommendation” or “direction” and noted that the matter may come back to the Council for further discussion following the C-TRAN meeting. None of this discussion would indicate that Council was acting any differently than it has in countless other workshop settings. From a procedural perspective, the Mayor did not entertain or require a motion and no formal vote was taken on the matter. Each Councilmember stated their preference for the ballot measure options and a majority coalesced around one of the proposed ballot measures. With respect to Section 5.8 of Policy 100-32, I would not interpret the Council’s direction to its C-TRAN representatives as formal action insofar as that term is used in the Policy.

Finally, I would point out that a similar discussion of this nature occurred at a previous Council workshop earlier this year when Council was reviewing proposed changes to Policy 100-32. The question was posed as to whether the Council’s direction to its C-TRAN members at the September 13, 2010 workshop constituted formal action. The response given then was that the term ‘formal’ as used in the Policy 100-32 meant an action taken on a resolution or ordinance which requires a formal process for adoption. At Council’s request, that clarifying language was incorporated in the amended version of Section 5.8 of Policy 100-32 and adopted by the Council on March 21, 2011.

Please advise if you have further questions regarding this matter.

Here’s Stewart’s full March 21 email:

In January of 2011, my removal from the C Tran Board was recommended by Pat Campbell and agreed to by all other council members. The stated reason for removal was failure to follow a directive given to council members sitting on the C Tran Board of Directors.

The basis of that removal stemmed from actions taken at a Vancouver City Council Workshop on September 13, 2010.

The actions taken at that workshop were the following:

  1. A decision to formulate action to be taken forward to the C Tran Board meeting the following day.
  2. A decision by the majority of Council to a specific construction of a specific taxing measure.
  3. A decision to formulate a specific directive for future actions by Council members serving on the C Tran Board of Directors.

These actions violated the Resolution of the Vancouver City Council approving Policy and Procedure Number 100-32, Section 5.8 “Workshops”, third sentence, quote: “No formal action is taken at workshops.”

This policy was in place on September 13, 2010 and continues in place today.

The illegal action taken by the Council at a September 13, 2010 workshop, cannot be a binding obligation for any Council member to follow. Hence, if the Council action was not legal or binding, my removal from the C Tran Board was unjustified and punitive.

I ask Mr. Gathe to offer a legal remedy.

Jeanne E. Stewart, Council Member City of Vancouver

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