Ferndale council wants power to bar members from legal briefings

THE BELLINGHAM HERALDJune 14, 2014 

FERNDALE - City Council members and the city's attorney are losing confidence in the secrecy of their closed-door meetings. In a vote scheduled for Monday, June 16, council members likely will give themselves the authority to force a councilor to leave an executive session if they believe that member even appears to have a conflict of interest.

City staff would not brief council members in an April 21 executive session on a legal dispute with resident Art Rojsza because council member Carol Bersch would not leave the room, city spokesman Sam Taylor said. Rojsza is involved in several state and federal lawsuits against Ferndale. One of the cases pertains to an unpermitted, prominent house/clock tower on Main Street within view of City Hall.

Bersch and her husband, Michael, are friends with Rojsza. Michael Bersch, who is educated in law, once discussed a then-active sexual harassment case against Rojsza with Rojsza's attorney. That discussion helped turn the outcome of the case in Rojsza's favor. Carol Bersch confirmed this under questioning from Taylor during the public portion of the April 21 meeting.

Bersch did not return a phone call from a reporter seeking comment.

"When you're married, under state law and under your own ethics handbook that you took an oath of office to follow, you have a conflict of interest if your husband, your spouse at any time has these types of relationships with other people," Taylor told Bersch in April.

"I fully believe I belong here," Bersch replied. "I don't know why you think that I'm just going to go blab everything. ... I do have the city of Ferndale at heart. I'm sorry, but I do I feel like I should be included in this discussion."

Council members said they had nothing personal against Bersch, and they didn't think she would reveal the city's legal strategy to someone who had sued the city. The appearance of a conflict was enough to require a council member to step away from a discussion of the case, they said.

City attorney Dannon Traxler reinforced this at a meeting of the City Council's Finance and Administration Committee on Wednesday, June 11.

"The disconnect here is that it doesn't matter whether you have a conflict of interest or not," Traxler said. "All that matters is that you have an appearance of a conflict of interest. ... It's for the benefit of your council. It's for the benefit of your city. ... It's not about anyone's integrity."

Officials said the cost to taxpayers could be greater if the city's legal strategy is leaked to a legal opponent.

"I have to know that (executive sessions) are going to be confidential no matter what," Traxler said.

The committee, which included Bersch, voted unanimously Wednesday to forward to the full council an ordinance that would enable council to force members to recuse, or remove, themselves from executive sessions. Such a forced recusal would require five "yes" votes on the seven-member council.

Bersch asked whether a specific council member had sponsored the ordinance. Taylor told her a group of council members had wanted to take this vote.

The ordinance appears likely to pass.

"It very likely would never be used, but it would be a good tool to have," council member Jon Mutchler said.

Reach Ralph Schwartz at 360-715-2289 or ralph.schwartz@bellinghamherald.com. Read his Politics blog at bellinghamherald.com/politics-blog or get updates on Twitter at @bhampolitics.

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