When is open government a little too open?
Perhaps it’s when tape recorders are included in closed-door executive sessions.
That’s the feeling, at least, of some elected officials who are studying a piece of legislation recently introduced by State Auditor Brian Sonntag.
The draft bill, according to Sonntag, would do the following:
— require an audio recording of complete executive sessions;
— make the recording a public record, not subject to disclosure except by court order
— allow an individual alleging an improper executive session to petition a court to review the audio recording, and the court will determine whether there was an improper executive session;
— permit the court to disclose only those portions of the audio recording where it finds a violation of the executive session provisions;
— and allow any documents relied upon in an improper executive session to be subject to disclosure if not otherwise exempt.
Currently, the state’s Open Public Meetings Act lets elected officials hold closed-door “executive session” discussions regarding personnel matters, pending litigation, and real estate transactions. There is no requirement to record the proceedings conducted in executive session. However, all votes must be held in public session.
According to Sonntag, between Jan. 1, 2004 and Nov. 13, 2007, there were 460 instances where executive sessions presented issues such as illegal meetings and improper notices.
Washington State Attorney General Rob McKenna has thrown his support behind the proposed legislation.
In Tacoma, however, support is mixed.
The issue arose Tuesday during the Tacoma City Council study session, when Councilmember Rick Talbert floated the idea of introducing a resolution to support the legislation.
“It’s only a matter of time before we get there,” said Councilmember Talbert, who pointed to recent executive session issues in Puyallup and Ruston. “We may as well get out in front. I don’t know how to tell constituents I’m against this.”
But other councilmembers do.
Councilmember Connie Ladenburg said her biggest concern was the burden of proof piece — specifically, when and under what circumstances would tapes be provided to the public. “What is the criteria to open this up for a judge?” she asked. “What is the real reason for doing this?”
She also opposed a resolution of support because details of the proposed legislation could change as it works its way through Olympia. “You never know what’s going to be attached to a bill between now and the day of the vote,” she added.
Tacoma Mayor Bill Baarsma said supporting the draft bill would present a conflict of interest for him. Mayor Baarsma currently serves on the executive board of the Association of Washington Cities — a group that opposes the idea. According to AWC’s Web site, it is against the draft bill because “it will stifle appropriate discussion and infringe upon the attorney-client privilege. In addition, local governments are concerned with the technology and associated costs necessary to insure quality recordings. And, the current proposal is unclear as to who bears the cost of judicial review.”
Councilmember Mike Lonergan said the unintended consequences of the legislation could have “a chilling affect on discussion that need to take place” in executive session. “When there is a tape available, there is going to be great desire on the part of media” to get the tape, he added. “I don’t see it as a step forward.”
But Councilmember Spiro Manthou supported it. “It’s a transparency issue,” he said. “I just think it’s the right thing to do.”
City Council is expected to revisit the issue during its Feb. 12 study session.