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POSTED: Saturday, Nov. 01, 2008

State agencies, watchdog group eyeing Whatcom County's executive sessions

Two state agencies and an open government organization are watching Whatcom County Council executive sessions after it came to light that officials may not be following state law.

County Council members recently got into a heated battle with County Executive Pete Kremen and his administration over Kremen's salary, which ended up being increased more significantly than the council intended.

All of the discussions about it took place in closed-to-the-public executive sessions between March and October, while the council discussed a resolution to increase the county's unrepresented employees' salaries.

Those non-union employees are support and professional services staff, supervisors, managers, department heads and elected officials.

THE LAW

Washington's Open Public Meetings Act states that executive sessions are allowed for negotiations and strategizing the county's contracts with collective bargaining units. But the unrepresented employees are not collective bargaining units. The law states "discussion by a governing body of salaries, wages, and other conditions of employment to be generally applied within the agency shall occur in a meeting open to the public."

But County Prosecutor Dave McEachran and his deputies argue that there is no way for the council and administration to discuss the strategy for negotiations with the unions without discussing how unrepresented employees impact that strategy.

Tim Ford, the state's special assistant attorney general for government accountability, has said he disagrees with the administration and county prosecutor's interpretation of the law.

That's fine with McEachran, who refused to request a formal opinion from Ford when asked to do so by Councilwoman Barbara Brenner at a recent public meeting. McEachran said he and one of his deputies, attorney Daniel Gibson, are comfortable with their interpretation of the law.

"At that point, to me there is no reason" to seek a formal opinion from the state, McEachran said.

COUNCIL CONCERN

Brenner and others also told McEachran that in some of the closed meetings, they never discussed the unions or union negotiations. In fact, some of the executive sessions about unrepresented employees' salaries took place after the collective bargaining unit contracts had been finalized by the council, they said.

Council members Laurie Caskey-Schreiber, Barbara Brenner and Carl Weimer have expressed concern about how the meetings have taken place. Brenner wants them in the open. Caskey-Schreiber also proposed discussing the unrepresented employees in a public meeting. But Councilman Sam Crawford said he would support discussing only the salaries of elected officials in the open, rather than all unrepresented employees, and said that he has to rely on the advice of the county's attorneys.

"That doesn't change our position here," Assistant Attorney General Ford said, pointing out he still believes all of those employees' salaries should be discussed in public.

IN OLYMPIA

The State Auditor's Office has been aware of the issue since earlier this week, said SAO Communications Director Mindy Chambers.

"What the council really needs to do is look at the letter of the law and the spirit of the law," she said. "I think the spirit of the law clearly says that they should err on the side of openness."

And now, there's a chance the county's next audit could include a review of the executive sessions in question.

"Certainly this has floated onto our radar," Chambers said.

Chambers said her boss, State Auditor Brian Sonntag, feels very strongly about that openness.

"Certainly the public feels that way. I guess the question I would consider asking myself as a council member is, 'Why would I not have this be in the public. Why should it be secret?'" she said.

Chambers said the issue is about public dollars, paid by citizens, and "the citizens have a right to know how those dollars are being spent."

In this instance, it turns out not even the County Council knew how the money was being spent, with Kremen receiving a 17 percent salary increase they've now been told they can't reduce, according to county attorneys, citing the state Constitution.

Meanwhile, the Washington Coalition for Open Government has collected information about the case as an example of an executive session violation. They'll add it to a list of violations they'll use to lobby in favor of a bill in the state Legislature to require taping executive sessions for judicial review, said Jason Mercier, the group's treasurer and director of Washington Policy Institute's Center for Government Reform.

The Bellingham Herald is a member of the coalition.

As of now, there is basically no proof - other than the words of those in the meetings, who often won't discuss what went on in them - of what takes place in executive sessions.

The case also could help convince legislators that there is not enough teeth in the Attorney General's Office to hold governments accountable - the only option now is for citizens to sue a government - nor are fines and penalties, now $100, big enough.

"Even though the law seems to be pretty clear, we're continuing to see an ignorance or a willful ignoring of the advice that the attorney general is giving to them," Mercier said.