The Board of Island County Commissioners may have violated the state’s Open Public Meetings Act in ousting planning director Dave Wechner and splitting the Planning Department’s leadership, experts said this week.
With a suddenness that shocked some onlookers, they took both those actions earlier this month.
During a public work session Wednesday, Oct. 7, the commissioners revealed that, earlier that day, they held a closed-door meeting — a so-called executive session — about “the performance of an employee,” Commissioner Helen Price Johnson said.
Then, during the regular weekly commissioners’ meeting Tuesday, Oct. 13, Human Resources Director Melanie Bacon said the commissioners had repeatedly met in executive session to discuss their preference “to see the planning department move in a different direction.”
Budget Director Elaine Marlow was also present during those sessions.
The commissioners “directed us to act on behalf of the board based on our assessment of the commissioners’ conversations held in these executive sessions,” Bacon said. “And, as a result of our interpretation that each commissioner would prefer to see the planning department move in a different direction, we spoke with David Wechner suggesting his resignation, and he resigned … Oct. 12.”
The commissioners then unanimously, and without discussion, approved a motion to accept Wechner’s resignation letter.
The Open Public Meetings Act, RCW 42.30.110(1)(g), does allow executive sessions “to review the performance of a public employee,” but it requires that, when a governing body “elects to take final action … discharging … an employee, that action shall be taken in a meeting open to the public.”
The phrase “final action” is defined by Washington law to mean, among other things, “a collective positive or negative decision.”
“I would have a concern” about the board’s delegating to Bacon and Marlow the responsibility to take action on Wechner’s employment, said Nancy Krier, the state’s assistant attorney general for open government.
“In this case, it sounds like the final action was delegating to someone else to take action,” she said. “The presumption is that, if you’re going to take a final action, that has to be done in public unless you have a specific exception” to the Open Public Meetings Act.
Another violation of the Open Meetings Act may have taken place with how the commissioners split the department in two, with separate leaders for long-range planning and for current-use planning and community development.
Bacon and Marlow at the regular weekly commissioners’ meeting Oct. 13 said that the commissioners on Oct. 7 directed them, under the same section of the Open Public Meetings Act, to act on their behalf “based again on conversation held in executive session.”
“As a result of that conversation, we are recommending that the Board of Island County Commissioners … institute the following temporary changes to the leadership structure of the planning functions.” They then outlined the proposed split, which the commissioners approved unanimously.
The problem, noted assistant attorney general Krier, is that the RCW 42.30.110(1)(g) — in fact, all of the law governing when executive sessions are permitted — has nothing to do with administrative changes such as splitting a department.
“If you look at all the provisions, there isn’t anything allowing executive sessions for restructuring a department,” Krier said. “Therefore it must be public.”
Toby Nixon, president of the Washington Coalition for Open Government, agrees with Krier.
“I see absolutely nothing in the law that allows the commission to have a closed meeting to discuss reorganizing the structure of a department,” Nixon said.
Commissioner Helen Price Johnson on Monday denied the board violated the Open Meetings Act.
“I am confident we followed the rules. We are very mindful of our responsibilities under the law. We delegated to our HR person to help with a sensitive issue. We did not make the decision to split the department in executive session.”
Greg Banks, who as Island County’s prosecuting attorney and represents the commissioners, said Monday, “The Open Public Meetings Act can be very technical. I can’t comment on an area on which the board may call on me for advice.”
Dave Wechner could not be reached for comment Monday.
The Open Public Meetings Act is very clear in its preference for public decisions.
“The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know,” it says in its introduction. “The people insist on remaining informed so that they may retain control over the instruments they have created.”
Penalties for violations of the Open Public Meetings Act include nullification of actions unlawfully taken and the award of costs and attorneys’ fees to anyone prevailing in an action alleging a violation.