Two years ago…

Anthony Martinelli and I were both elected in 2019. We both defeated incumbents (which was almost unheard of over the past three decades) and shared many broad policy positions. But there was a real difference in philosophy. In one sentence: I was interested in the long game; he seemed focused on helping people now.

A good example of this distinction was the ARPA Stimulus discussion in September.

• My colleagues in the majority were following the City Manager’s recommendations. Simple.
• Anthony successfully advocated for straight dollar amount grants for businesses, eviction relief, etc. Simple.
• In contrast I’m objecting to the entire notion of spending $9,000,000 in three hours. And on every line item I’m complaining: Why are we using one time money for salaries? Show me some stats on actual need. When can we get money out the door? How do we insure equity? What’s the process? Basically, I’m the ‘Dad’ asking my colleagues to behave responsibly. Goes over great with teens. Goes over even better with electeds.

The main thing we seemed to have in common was being mistreated as Councilmembers from day one. He and I disagreed on how to manage that reality. Ironically, he accepted that as ‘part of the game’ and from my point of view bent over backwards to be non-confrontational. If you look at his *social media it is unfailingly optimistic about all City actions except in two cases where he agreed to co-sign a letter I wrote. He went so far as to avoid submitting performance reviews of the City Manager. Drove me nuts. 😀

He also served on the Public Safety Committee.  When he chose to, he had no difficulty objecting to language he felt needed improvement and providing specific and useful edits. It was notable because that’s exactly what CMs are supposed to do and frankly I wish it happened more often.

My points being:

• Much of the animus directed against him began long ago. People hold grudges here and it is a shame that there is no price to be paid for doing so. But none of it had anything to do with this scandal or the way he conducted his official duties.
• He felt his approach was the pragmatic way to help people now.

The incentives to get something done now are incredibly strong; on all ends of the ideological spectrum. That is why almost everyone goes to such extraordinary lengths to avoid difficult discussions, even under the most challenging circumstances.

We’ve all heard the expression, “You can’t fight city hall”. It would be truer to say we choose not to. Some essential change requires at least minimal confrontation and a willingness to defer gratification. There is no other way.

And if that sounds like some hippie agitator crap, I will tell you that, no, that is just another common sense Dad Lecture:

• Sometimes you have to complain. Repeatedly. It’s not you. It’s them.
• You should balance your checkbook and review your spending. You can save a lot of money that way.
• And sometimes you have to put off that spending in order to save for something much better down the road.

But very few people, both the public and electeds, find any of that a particularly entertaining prospect when it comes to government. In our private lives, sooner or later we pay a very high price for not listening to Dear Ol’ Dad. But when it comes to government, both the public and electeds have every incentive to pretend that these rules do not apply.

An uncomfortable reality is that Councilmember Martinelli lost his seat for an issue in his private life. We all agree that the accusations are beneath contempt. But by the same token, the entire City Council can make absolutely monumental screw-ups with your money and suffer absolutely no consequences. Hell, we may even get a plaque on a building. And you may not even know the truth until after we retire down to Boca.

That is the ceiling of what is possible; not ‘city hall’.

Martinelli navigated that ceiling as best he could because his goal was to help people now. I disagreed with that approach. In contrast, I was and will continue to try to punch through it.

I went through all this to tell you one simple truth: if you too have ever complained “you can’t fight city hall”? That’s the reason. It has nothing to do with ideology or character or age or anything other than the fact that the system incentivises all of us electeds to behave like that and then tell the public it’s the best we have to offer.

Four months ago…

Within minutes of Councilmember Martinelli’s arrest in October, then Mayor Pina issued a press release claiming to speak for the entire Council. That was not true. But if he had asked my advice, I would have reminded him of 2015. At that time, the Council, of which he was a member, handled a comparable situation with restraint. The public responded immediately with an outpouring of letters of outrage. Shortly thereafter the Councilmember understood that it was best to resign. Her legal woes dragged on for over a year, but the political scandal lasted about a week.

In contrast, the 2021 City Council made every possible effort to inflame public sentiment. Then Deputy Mayor Mahoney went so far as to encourage the public to download a police report containing highly personal information about the alleged victim which I felt put her and her children at risk.

The Waterland Blog also went to town, publishing not only the press release, but gratuitously placing the police report on their web site in multiple locations. I called the publisher to complain and he took them down, but by then the ‘reach’ was in the thousands according to the almighty Google.

After the November election, the Council discussed a censure, which seemed entirely reasonable to me. I spoke with one colleague and said that I would only vote for a censure if the police report were removed, and discussion limited. Consider the children and remain calm. Going so over the top is bad on many levels.

But when the Agenda packet was published, the entire report, all 123 pages, were included! The language of the resolution addressed none of my concerns and in fact upped the ante saying that the notice be placed prominently in front of City Hall (with a link to that police report) and forwarded to basically every elected in South King County.

Regardless of motive, we subjected his current partner and three children to unnecessary public exposure. It was cruel, bad press for the City, and if the majority goal was not merely ‘censure’ but to hasten Councilmember Martinelli’s departure? It was also poor strategy. I voted No.

Last week…

Thursday Jan 13

About an hour before a City Council Meeting I got a phone message from Sydney Brownstone of the Seattle Times, asking for comment on an upcoming story she was doing but with no specifics. I returned her call, got her voice mail and did not hear back.

Sunday Jan 16

On Sunday the Seattle Times ran her story with new allegations from two former partners, including the mother of two of his three children, Cydney Moore. The article was 2,500 words, three times the length of a typical small town piece and left no detail to the imagination. I’d go so far as to call it ‘advocacy journalism’ and not straight news.

Mayor Mahoney wasted no time in responding with a short statement in the Waterland Blog.

TUESDAY Jan 18

Based largely on that Seattle Times piece, the 33rd Democrats announced they were calling for Councilmember Martinelli’s resignation.

WEDNESDAY Jan 19

At that point I decided to call Mayor Mahoney. I told him I appreciated both the measured tone of his statement and especially the fact that he was clear to say that he was speaking on his own behalf and not for the entire Council. I told him I considered that a marked improvement over the events of October.

And then I reminded him of how the Council had handled the comparable situation in 2015 and urged him nicely, but firmly that leaving it there was in everyone’s best interest.

THURSDAY Jan 20

I watched Councilmember Martinelli’s pre-trial hearing. Now: if one were to watch that video as an outsider; truly dispassionately, the Judge is upbeat. There is no scolding and the tone is 100% optimistic. Someone watching with no other references would certainly register a note of hope for the future. The Judge’s job was not to punish. Her job was to execute the law and encourage the guy to successfully carry out the terms of the agreement. I thought she handled it well.

Within minutes he posted on Facebook that he would not be resigning.

The City also had a press release ready to go. It was factually accurate, but again, not exactly flat.

Councilmember Martinelli wrote me a short note that afternoon commenting on that press release.

I wrote back something longer. I told him that the press release was spun in an extremely negative manner. But I also I told him that he should have come to expect that after the past two years and he should expect even more over the next two years if he stayed.

I told him I felt I had been more than fair in my handling of his situation. A lot of the public would not understand that I had merely acted in a principled manner.

I told him that he should expect the video of his court appearance to be as widely viewed as that police report.

The Court video has been removed from Youtube and I’ve read some notes on social media suggesting that there is something fishy in this. Probably not. The Court live streams videos and Youtube caches them for a while. But I’ve never seen any of our Court videos hang around for very long.

And finally, I made it clear that our working relationship had not been what it should have been from the beginning. If he intended to remain on the Council I expected that to change. The public did vote for change in 2019. It takes years of mutual cooperation to fix the long standing problems in both our politics and our government. More ‘Dad’, I suppose.

He sent me a one sentence reply, only asking a question about the video.

But almost immediately, I started seeing dozens of people linking to that court appearance and of course none of the comments were positive. Every person used that video as a platform to say, ‘resign’.

Another example of ‘sharing’. There were only two and then three people listed as viewers during his hearing and I was the only one who publicly identified themselves. I did not share the link. So one person shared that link and that turned into dozens and then hundreds within the space of an hour.

FRIDAY Jan 21

Councilmember Martinelli announced his resignation Friday night on Facebook. Resigning via social media is non-traditional, but it is also exactly what I would expect from the person I know.

Within minutes the Mayor responded that he was taking action to start the replacement process–which I assume means Rule 33 of our Rules Of Procedure.

I asked the Mayor, the City Attorney and Councilmember Martinelli to confirm his resignation via official email. The City Attorney wrote me that he considers that post sufficient.  I wrote back that I’m not exactly wild about any official action being taken based on social media. A growing percentage of the public mistakenly assumes that posting something on Facebook is the same as contacting the City for services. It’s not.

Sunday January 23

Sydney Brownstone published a 1,000 word update describing Councilmember Martinelli’s resignation. If I appear to have something of a tone here, it’s only because it has gone beyond advocacy journalism into the realm of “if it bleeds it leads.” There are any number of stories the Seattle Times could do that would be of greater impact to Des Moines. The article is about Des Moines but it is targeted for a Seattle audience.

Three small details…

I applaud any woman for coming forward. But the family dynamics of three small children and two electeds were and remain complex. My understanding was that he and his current partner were the primary caregivers for all three–including the two eldest with Cydney Moore. One of my primary concerns from day one was to minimise their exposure to any of this.

An inconvenient truth…

I keep noting the difference in approach between 2015 and 2021 because, with all the media coverage, all that energy, there was nothing approaching the public outrage of 2015. There have been a handful of obvious partisan complaints and an on-line petition with less than 200 anonymous entries. But not to trivialise the issue, the Council has heard half a dozen issues over the past two years that generated more public comment.

You may say, “I don’t give a damn how many people wrote in. This is domestic violence!”

It’s also democracy. And sometimes the voters want things they cannot or will not say openly. I do not believe that anyone condones heinous conduct like domestic violence. But my guess is that many people were torn at being forced to choose between the change they hoped for in 2019 and even appearing to support domestic violence.

I am also aware that a large number of residents never got over our last appointment process in February 2020. At that time, the person I defeated was re-appointed to another vacant seat only three months later and by what I can safely say now was an unethical process. Many people considered that move deeply undemocratic and a slap in the face of the change they had just voted for. The possibility of a repeat held no appeal for a large part of Des Moines.

That is the practical effect of slowly eroding public trust. The public remembers. Every time the City Council acts in anything less than a completely ethical manner, it creates bad unintended consequences for the future.

To be specific: whatever benefits the majority may have felt they were obtaining by appointing Luisa Bangs in February 2020 only made the events of October 2021 more difficult. And that in turn will make the February 2022 appointment process more fraught.

In short, the relative silence from the public was, in itself, a message. My hope is that our City Council can hear that message above the din of scandal.

Now what?

Our Council has some trust building to do. The February 2022 appointment process is a key moment, either to improve or further erode that trust.

Already I see people speculating about ‘who’. But my primary concern, as usual, has more to do with that process. So long as the process is good, I trust the public to do the right thing. And the upcoming appointment process must be a model of fairness.

*I assume because I do this blog and he was on Facebook a lot, we get lumped together. But in fact, Anthony Martinelli was a very conventional  progressive local politician. He used Facebook to communicate. And yes, his partner and he would coordinate on social media messaging. But others on our Council also have social media surrogates to fight their battles for them. You just don’t know it.  And other CMs were web-illiterate and complained that somehow he had taken ‘unfair advantage’. Ridiculous. That nonsense made him look far more ‘different’ that he really was. One can disagree with his policy goals (and as you can see I certainly did at times) but those goals and his approach were not out of the mainstream.

Former Mayor Pina frequently compared our city to a corporation. Not being nearly as cranky as people say, I never had the heart to mention that one legal title for our city is the Municipal Corporation Of Des Moines, Washington.

There’s a point to this (very) gentle dig. It isn’t a metaphor, it’s a fact. We have a Chief Executive (the City Manager, a Board Of Directors (the City Council) and voters (the shareholders). 

Information is power

In a corporation each group has access to a different set of information:  Shareholders (voters) can see any document not excluded by law. These include all emails and phone calls and faxes generated by any employee or contractor. You get can them via public records request here.

Board members obviously will have access to other information that must be kept private in order for the organisation to function. Some of these are negotiations and matters of oversight. But a councilmember’s access to information differs from that of a public corporation board member in one key way:

Right of Inspection Defined

In a public corporation there is always a right of inspection, a set of rules giving each board member independent access to the corporation for the purposes of research and oversight.

Among these are the ability to:

• Interview employees up to the CEO periodically, solely for the purpose of research.
• Visit offices, walk the factory floor on request.
  
• Review all internal documents both past and present.
• A guarantee that all reasonable requests for research will be faithfully honoured in a timely manner, or if the request is onerous, sent to committee or the full board with a cost estimate as to the requirements.

All that seems like common sense to most people. After all, how can one perform ‘oversight’ without unfettered access to everything and everyone? If the CEO or fellow board members had the ability to obstruct any board member from obtaining information or talking to employees, they would. If it is allowed? It happens.

We’re special…

Many of you know that there is a strong mayor type of city government (like Federal Way), where an elected mayor acts as CEO apart from the city council, and council-manager government (which we have), where the CEO is the City Manager, an employee hired by the city council and where the mayor is a member of that council.

In the elected mayor system, the city council always has a right of inspection. He’s a politician, right! 😀 (No, seriously, that’s the reason. Electeds in different branches of government have that in-built skepticism.)

What almost none of the public understands is that Council-Manager Government (CMG) provides no legal right of inspection.

However, most city councils have some form of rules that allow CMs some version of that. But there’s nothing in the RCW requiring it. Now, what the RCW does say is that all access to information or staff must go through the City Manager. For example, to try to communicate with staff without the permission of the City Manager is referred to as ‘councilmember interference’, and it is illegal. The City Manager is the Gate Keeper: to information and employees and any of the premises.

To be fair, almost all city managers understand the ramifications of this if taken literally and go out of their way to accommodate reasonable requests from councilmembers. But that is only a matter of courtesy, precedent and custom. State law protects the City Manager from pesky CMs. It says nothing about the reverse possibility.

Currently the City of Des Moines currently has no right of inspection of any kind. We are different from all our sister cities in that way. 

One seat?

Shifting gears for a sec. If you listen to any of those business news channels you’ll occasionally hear an analyst scoff when some interest group obtains one seat on an important corporate board. For example, environmentalists  worked for years to obtain a single Directorship on the Board of Exxon.

But that view is myopic. Those groups don’t work so hard for a single seat expecting to change policy. They want the seat so they can obtain that right of inspection. They want access.

It’s a hit with the public…

The right of inspection ensures that a board member who disagrees with the CEO or the board majority can’t be boxed out. Even if the CEO and every member of the board hates yer rotten guts, you still get the same access they do. Beyond that, it’s up to you to inform your constituency and shareholders, with what you’ve learned. That knowledge may help to obtain more seats, or help your constituency. But without independent access to information, neither are possible.

And for exactly the same reasons, an independent right of inspection is a hit with shareholders and investors. In public corporations this is absolutely essential because so much work has to be done out of shareholder view.

One big fear for any investor is that they are only getting ‘the corporate line’ and not all points of view. Investors may not agree with minority board members; but they listen to them.

The independence of board members is considered one of the keys to the success of American capitalism. The rest of the world invested with us not just because we invented light bulbs and electric cars but also because we developed controls like right of inspection that make our system trustworthy.

And now the bad news…

Ironically, the State Of Washington has one of the strongest open public meetings acts in the entire United States. So you would think that a municipal government would be a model of transparency.

But if your city has a council-manager form of government and does not afford each CM that right of inspection? OPMA is meaningless. In fact, it’s worse than that because it gives the public a completely false sense of reassurance.

In council-manager government, if a councilmember is denied access to information or staff or premises, their only recourse is the City Council. If the City Manager does not choose to cooperate with any CM, a majority of the city council must vote to take action. There’s no HR department for councilmembers.

Self-censorship

In that situation,  the vast majority of councilmembers will self-censor.

“You better not annoy your City Manager too much.” “You better not annoy the current majority too much.” Because if you do, you don’t just lose votes, you may lose a lot more.

Why it’s so tough to fix…

So… let’s say you’re concerned about some aspect of City Hall. You walk up to a colleague and ask them to support you in confronting the administration. They may agree with you (in theory) or they may not. But it’s asking them to court trouble.

Most people who run for city council do so in order to do something good for their community. Maybe cut a few ribbons. A plaque would be nice. 🙂

But that’s what makes reform so hard. If you have problems of governance, under these circumstances, you have no way to fix it, except using the following mechanism:

1. Develop a pleasant relationship with the administration and the majority, but keep your feelings to yourself.
2. Bide your time for  x) number of years, constantly working to recruit candidates who agreee to also run on an inoffensive platform, while committing in private to support ‘tough reform’.
3. Attain the majority.
4. Bend the administration to your will.

Great plan.

And because we are a ‘small town’, who else might stand up? Civic groups that are unhappy will not risk their status. We have no newspaper. And there are no public interest groups that operate at the level of a small town.

This lack of independence has absolutely catastrophic consequences for open government. It creates the strongest possible incentives for every elected to find ways to agree, and not attempt to address issues that the administration may not enjoy.

The scoreboard

• For the past two years I have been barred from speaking with staff or to visit city offices. In fact, members of staff have ended conversations with me, literally in mid-sentence, after receiving a call from the City Manager. I have been told by third parties that they are under orders to avoid contact with me on the street for any reason.
• I have been barred from any number of meetings where other council members were present. Dozens of emails with routine questions go unanswered. Emails that are replied to usually contain a single sentence reply. Almost none are meaningful.
• The City Manager has refused to schedule a meeting with me or take a phone call since March of 2020. 

None of that conduct can possibly be related to the State Of Emergency because all other CMs have been able to do any and all of these things. Most of my colleagues have acknowledged it plainly. They simply refuse to take any action.

Again, in a public corporation that would not be possible. It would immediately trigger an HR investigation. And in cities with elected mayors or CMG with rules providing a functional of a right of inspection the above lack of cooperation does not happen either.

Here’s a chance…

Our newest councilmembers have pledged to be different. The thing I have tried to convey to them is that we should celebrate the independence of all CMs. An independent board builds public trust and has made America the model of corporate governance for the rest of the world. Des Moines is a corporation and would benefit greatly from adopting similar standards of excellence.

Therefore, we should update our Rules Of Procedure to provide a full right of inspection for each councilmember.

There are many reasons to promote an indepedent City Council, but the one you should care about most is this: It’s your money. You elected us to watch over it. And when it comes to oversight? Seven sets of eyes are always going to better than one single majority.

Inquiry: May a city manager review individual councilmembers?

Response:  On the question of whether the city manager may provide feedback to councilmembers in an executive session, I agree with my colleague Oskar Rey’s April 2021 inquiry response to you. RCW 42.30.110(1)(g) authorizes executive sessions for the council to “to review the performance of a public employee.” Councilmembers are not public employees for most purposes. In general, it does not make sense for an appointed official who serves at the pleasure of the Council to review the job performance, either in executive session or in a public meeting, of individual councilmembers.

In addition, a councilmember with a complaint or charge against them could ask that it be considered in a public meeting rather than an executive session. RCW 42.30.110(1)(f) provides:

To receive and evaluate complaints or charges brought against a public officer or employee. However, upon the request of such officer or employee, a public hearing or a meeting open to the public shall be conducted upon such complaint or charge;

I recommend you consult with your city attorney. Let me know if you want to further discuss.

Linda Gallagher (she/her)
Legal Consultant
206.625.1300 x222

Inquiry:  When councilmembers confer in advance about matters to come before the council when is it a serial meeting in violation of the OPMA?

Response:  In my opinion, it would be a serial meeting in violation of the Open Public Meetings Act (OPMA) if a quorum of city council members confer with each other, including either via telephone or email, to determine if they have sufficient support for a matter to be considered at an upcoming council meeting. This would include having a series of one-on-one conversations between council members about a matter of city business for the purpose of assessing support or counting how their upcoming votes are likely to be cast.

Here is MRSC’s FAQ related to this question from our topic page Open Public Meetings Act FAQs:

1. What is a serial meeting?
2. A serial meeting, sometimes referred to as a “walking” meeting, happens when fewer than a quorum of the governing body takes “action” at one time, but that action is then repeated in a way that eventually involves a quorum of the governing body. It does not matter if the serial meeting happens in person, or by electronic means such as email or social media posts.

It is not a serial meeting if one member of a governing body shares information with the rest of the body. “Passive receipt” of information is allowed.

Examples using a scenario where there are five board members (1-5), so three members is a quorum:

• Board member 1 talks to board member 2 about agency business. 2 talks to 3 and tells 3 what 1 said. 3 talks to 4 and tells 4 what both 1 and 2 said. You now had a “serial” meeting because a quorum of the council is discussing agency business.
• Board director puts a draft policy on the agency’s SharePoint site and grants permission for all five board members to edit the document. (SharePoint allows for simultaneous editing of documents and real-time chat). If at least three members comment, or propose edits, you’ve had a serial meeting.
• Board member 1 posts on their personal Twitter page about their intent to vote in favor of a proposed action. The next day board member 2 retweets commenting that they oppose the action, and tags board members 4 and 5. Board member 4 responds that afternoon saying they support the member and tags board member 3. This now became a conversation among a quorum of the board members about agency business, and is a serial meeting.

Agencies can help avoid a serial meeting over email by adopting rules prohibiting members of the governing body from communication with a quorum of the body. Instead, route emails and replies to staff and then the matter can be discussed at a future open meeting. Also, putting the addresses of the member in the “blind carbon copy” field of most email programs will keep that program from replying to all the members. For social media, consider adopting rules that prohibit members of the governing body from commenting on posts made by other members; especially if your agency has official media pages for the members. See MRSC’s blog post, Tips for Avoiding OPMA Violations, for other helpful suggestions.

Here is a link to the September 2020 Washington Court of Appeals decision Egan v. City of Seattle, 471 P.3d 899 (2020). The plaintiffs alleged that City of Seattle councilmembers violated the OPMA by making a decision as a result of a serial meeting including via emails and that a councilmember’s staff person made a vote count tally on an issue that appeared to be decided before the council’s public meeting. The court discussed the legal issues and found genuine issues of material fact and remanded the case to the trial court for further proceedings. On remand, the parties reached a settlement.

Here is a link to MRSC’s blog post What Constitutes a Serial Meeting under the OPMA?

I recommend you consult with your city attorney. Let me know if you want to further discuss.

Linda Gallagher  (she/her)
Legal Consultant
206.625.1300 x222

MRSC   Empowering local governments to better serve their communities

Disclaimer: MRSC is a statewide resource that provides general legal and policy guidance to support local government entities pursuant to RCW 43.110.030. This communication should not be construed as legal advice or as creating an attorney-client relationship. This communication is not confidential or privileged.

Inquiry: May a city council review of the city manager’s performance happen in an executive session?

Response:  It looks like the annual evaluation of a city manager may take place during an executive session under the authority of RCW 42.30.110(1)(g). However, if a city is considering termination of a city manager’s appointment, then a resolution, notice to the city manager, and, if requested, a public hearing is required under RCW 35A.13.130 and RCW 35A.13.140.

Here is an excerpt from a recent MRSC inquiry response about executive sessions and city council evaluations of city managers:

For city council evaluations of city managers, RCW 42.30.110(g) of the OPMA allows an executive session to be convened to discuss the performance of a public employee or official. There is how the Attorney General’s Open Government Resource Manual describes the provision – this provides a bit more insight into the purpose of the provision:

(g)  Evaluating Qualifications or Performance of a Public Employee/Official

There are two different purposes under this provision for which a governing body may meet in executive session.  For both purposes, the references to “public employment” and to “public employee” include within their scope public offices and public officials, so that a governing body may evaluate in executive sessions persons who apply for appointive office positions, such as state university president or city manager, as well as for employee positions.

The first purpose involves evaluating the qualifications of applicants for public employment.  This could include personal interviews with an applicant, discussions concerning an applicant’s qualifications for a position, and discussions concerning salaries, wages, and other conditions of employment personal to the applicant.  The authority to “evaluate” applicants in closed session allows a governing body to discuss the qualifications of applicants, not to choose which one to hire.  Although this subsection expressly mandates that “final action hiring” an applicant for employment be taken in open session, this does not mean that the governing body may take preliminary votes in an executive session that eliminate candidates from consideration.  Miller v. City of Tacoma (1999).

The second part of this provision concerns reviewing the performance of a public employee.  This provision would be used typically either where the governing body is considering a promotion or a salary or wage increase for an individual employee or where it may be considering disciplinary action based on an employee’s performance.  It should be distinguished from subsection (f), which concerns specific complaints or charges brought against an employee and which, at the request of the employee, must be discussed in open session.

The result of a governing body’s closed session review of the performance of an employee may be that the body will take some action either beneficial or adverse to the officer or employee.  That action, whether raising a salary of or disciplining an officer or employee, must be made in open session.

When a discussion involves salaries, wages, or conditions of employment to be “generally applied” in the agency, it must take place in open session.  However, if that discussion involves collective bargaining negotiations or strategies, it is not subject to the OPMA and may be held in closed session without being subject to the procedural requirements for an executive session in RCW 42.30.110(2). See RCW 42.30.140(4).

Inquiry: May a city manager review individual councilmembers?

Response:  On the question of whether the city manager may provide feedback to councilmembers in an executive session, I agree with my colleague Oskar Rey’s April 2021 inquiry response to you. RCW 42.30.110(1)(g) authorizes executive sessions for the council to “to review the performance of a public employee.” Councilmembers are not public employees for most purposes. In general, it does not make sense for an appointed official who serves at the pleasure of the Council to review the job performance, either in executive session or in a public meeting, of individual councilmembers.

In addition, a councilmember with a complaint or charge against them could ask that it be considered in a public meeting rather than an executive session. RCW 42.30.110(1)(f) provides:

To receive and evaluate complaints or charges brought against a public officer or employee. However, upon the request of such officer or employee, a public hearing or a meeting open to the public shall be conducted upon such complaint or charge;

I recommend you consult with your city attorney. Let me know if you want to further discuss.

Linda Gallagher (she/her)
Legal Consultant
206.625.1300 x222