According officials with the Washington Coalition for Open Government (WCOG), after reviewing a Bothell Reporter investigation, the Bothell City Council violated open meetings laws by discussing the potential purchase of Wayne Golf Course during a 2013 executive session, and then allowing the right of first opportunity to purchase the back-nine property to lapse without taking the issue to a public council meeting.
“Any time you make a decision in an executive session, you’re almost always breaking the law, because decisions are not supposed to be made outside of public meeting,” said WCOG Vice President Michele Earl-Hubbard, who is also a lawyer for Allied Law Group.
According to the city of Bothell, Earl-Hubbard is currently in litigation with the municipality concerning other open government issues. Earl-Hubbard said a citizen notified the WCOG about the potential violation of the Open Meetings Act. WCOG is also investigating the matter and has not come to an official conclusion as an organization, although other sources with WCOG agree with Earl-Hubbard.
The fact that the council discussed more than just the sale price of the property and came to a consensus to not take action is a violation of state law.
“The executive session regarding property is… to discuss the price you are going to offer or the price you are going to accept; it’s not meant for making decisions whether or not to lease things, whether or not to buy things,” Earl-Hubbard said.
During a Bothell City Council meeting held on April 7, a motion was passed to open a discussion on the closed executive session from fall of 2013, during which the council discussed the opportunity to purchase the back-nine of the Wayne Golf Course. Issues discussed in executive session are closed to the public and only opened by a vote of the council. The motion enabled all councilmembers to speak about what took place in the executive session since there are no notes or recordings from the 2013 meeting.
“As I recall, there was no discussion other than if we had the money, ‘yeah, we’d like to do it,’ but there was nothing [no money],” said Bothell Deputy Mayor Del Spivey during the April 7 meeting. “No discussion to seek a consensus to come to the dais and make a motion to take any type of action… Everybody essentially remained quiet on the topic and, when we did return to the dais, there was not a motion made by any of the councilmembers.”
In fact, there was no motion from the council for the next 45 days allowing the right of first opportunity to purchase to lapse. According to Earl-Hubbard, that lapse is an action by the council, of which the public was not made aware.
According to Revised Code of Washington (RCW) chapter 42.30, also known as the Open Public Meetings Act, “action” is defined as a discussions or considerations of final actions and more.
“They clearly made a consensus about [the purchase of the back-nine]. I think that they broke the law and, it was more than just breaking the law, it is violating the trust of their constituents because they’re not supposed to go into closed session to discuss anything beyond those 13 means,” Earl-Hubbard said. “I think they’ve acted illegally and really shortsightedly because they’ve caused their citizens to doubt them and mistrust them, and every decision you make in a secret setting is going to be one that your citizens will mistrust.”
Bothell City Attorney Joe Beck disagrees with Earl-Hubbard’s conclusion.
“No decision of any type was made and certainly no final decision was reached in executive session,” Beck wrote in a letter to the Reporter. “Also, the council did not reach a consensus to act or not act that in any way constituted a final decision.”
Some of the 13 issues covered under executive session, RCW 42.30.110, include matters of national security, selection of property with likelihood of increased price, evaluate complaints made against public officers or employees and more.
Beck, who attended the executive session, said during the April 7 meeting that the council never discussed the price because the city also said that the council should, if any action was desired, take action in a public meeting other than letting the 45-day right of first refusal run out and did not discuss it again until 2014.
“I explicitly stated that and, as you have stated, the consensus was there’s no money,” Beck said during the April 7 meeting.
“Final actions,” according to the Washington State Open Meetings Act, are defined as a collective positive or negative decision by a majority of members on the governing body.
“The courts have defined final action as anything that is an attempt to get a consensus; it can be a straw vote, it can be a raise of hands: any attempt to reach a consensus of the body is a final action,” Earl-Hubbard said. “Action is just considering, talking, discussing, deliberating; final action is when you actually start trying to get each other to a consensus agreement one way or the other.”
By agreeing there was no money to purchase the property, a consensus was made.
“Making a decision to let something run out is making a decision,” Earl-Hubbard said. “I think that what they did here, in making a choice whether or not to make this offer, absolutely broke the law.”
According to the Open Meetings Act, the only property-specific information to be discussed in executive session pertain to the cost of the property. In Chapter 42.30.110, the portion of the Open Meetings Act regarding executive sessions, councils may go into executive session “to consider the selection of a site or acquisition of real estate by lease or purchase, when public knowledge regarding such consideration would cause a likelihood of increased price.”
Beck insists that the executive session was needed for that exact reason.
“The fact is that the open discussion of such sensitive issues and potential tactics did have the possibility of causing an increase in the ultimate price,” Beck wrote. “If the city’s strategy for acquisition were made known on any property the city would be severely hampered in acquiring property. Under the law it is sufficient that the council had valid reason to go to executive session, and they are not required to know for certain beforehand that open discussion will result in an increase in the ultimate price – they only need to believe that open discussion would result in a likelihood of increased price.”
Earl-Hubbard disagreed with Beck’s assertion, though.
“In this particular context, the developer already knew that they were on the short list,” Earl-Hubbard said. “I see absolutely no value in having a secret discussion about whether or not to exercise that option. You have that discussion in public, and then you can go back into your private, executive session to start talking about what its worth and what you’re willing to pay.”
“I think it is extraordinarily disappointing that the Bothell Reporter would use as fact comments from an attorney that makes a living suing municipalities,” said Councilman Mark Lamb.
The council is currently under investigation for its actions concerning Wayne Golf Course by the Washington Cities Insurance Authority (WCIA) for potential conflicts of interest. A company associated with Bothell Mayor Joshua Freed has a purchase and sale agreement for the back-nine property.
It’s up to the council to allow for the WCIA report to be released publicly. Many residents have stated at council meetings that the investigation is not truly a “third party” as the WCIA is paid by the city.
“It’s [an insurance] pool, established under RCW, and we’re a member of that pool,” Beck said to the Reporter. “To the outside world it works just like an insurance company, but it’s a form of self-insurance.”
It’s through the WCIA that the third party investigator, an attorney, is being hired, though, the person has been pulled from a firm that has done work for the WCIA and member cities in the past. The entities within the insurance pool gather their money together so there’s financial backing for reserves and claims payments, or purchasing the services of attorneys.
“For pre-claim issues… generally speaking, as the risk manager for the city, I pick up the phone and call another person and we have a conversation,” Beck said. “They listen to what I have to say, and we talk about it, and they decide whether or not it fits within the guidelines of how the pool operates to take that on or not.”
According to Beck, conflict of interest in the world of municipal government is a specific term and only concerns involvement by an elected official in a decision on a contract in which they have a personal interest.
“I explained to my contact at the WCIA the issues that were involved and they agreed with me that it seemed like something that would fit within their parameters to have someone investigate it, to provide a definitive answer to the council,” Beck said. “It is not a conflict of interest [to hire the attorney through the WCIA], in my mind, because they are simply funding the investigation and are simply helping us find someone outside the city to do the investigation. It’s part of their service.”
It’s not known whether the executive session, during which the decision not to purchase the Wayne Golf Course was made, will be part of the final report concerning the possible conflicts of interest with Freed’s company attempting to purchase the property.
The city of Bothell’s master plan calls for the preservation of public open space. In the same month that Freed’s company entered into negotiations with the owners of the golf course for the back-nine, the Bothell Parks, Recreation and Open Space Action Plan was updated to include obtaining the property rights to the back-nine course.
Regional editor Matt Phelps contributed to this report.