On February 10, 2020 the city council decided to ignore the advice of the new city attorneys and ignore a deal I offered them in order to avoid any kind of legal liability. It stemmed from two successive meetings in November and December of 2019 where the council had violated the Open Meetings Act (OMA) by going into closed session improperly. The first meeting's violation was technical, they needed to have five of seven councilors vote to go into closed session, but only four were present. After the session, they unanimously voted to accept the terms of a settlement in another lawsuit.
After the meeting, I pointed out the issue with OMA to city officials saying that the infraction shouldn't affect the validity of their settlement vote made in open session, but that it should make the faux closed session minutes publicly available. Then City Attorney Richard Wilson thought otherwise, and figured 'reenacting' the closed session and voting on settlement afterwards would cure their problem. I (and statute) stridently disagreed and said as much at the next session. Nevertheless, they followed his advice holding another closed session, this time without any reason or justification other than Wilson's skewed opinion. The next month Wilson would be shown the door for a series of other legal blunders not associated with this big one.
Over the next two months I tried to do one thing in negotiations with the city manager and attorneys, one thing that would cost neither the City or myself anything: inspect the minutes of the two unlawfully held closed sessions. Statute and case law indicate that minutes of such meetings should be disclosable public records, yet they also indicate that minutes of closed sessions cannot be released to the public w/o going through court and that an official who discloses them w/o going through the process could be in trouble.
I suggested that we could avoid court if the council were to acknowledge that the two sessions were held in violation of the OMA and thus allow them to release the minutes. The new city attorneys and city manager tried to facilitate this, but were rebuffed on February 10th, 2020 by the council rejecting any sort of reconciliation or further discussion, vocalizing the false assertion that this could only be determined through going to court.
So rather than let me inspect and copy two sheets of paper representing minutes of two closed sessions where they had no obvious value in keeping their discussions secret after voting to accept the settlement terms in both cases, they have decided to waste tens of thousands of dollars in having it go to court, and as of Friday February 19th, 2021, going to appeals court.
For after a December 2020 motion hearing, Judge Peter Wadel made some very questionable legal decisions two weeks before his formal retirement in deciding that neither closed session was unlawful and therefore their minutes were not available. I am fairly certain that the decisions were made more on the basis of expediency rather than on law, for had he decided to allow the case to continue, it would have likely went into 2022, as discovery had not even began in earnest.
I have went to appeals court twice (in 2013 and 2019) in order to correct local trial court errors regarding FOIA public record disclosure issues and have came back with victories, this time I have the added support of the OMA and contract law. I feel confident that I will win on my appealed points because the law and facts are lining up on my side.
If this happens, it will take a while to matriculate through the appeals court, and hopefully when it does the City will accept their defeat with grace rather than extend the process out more years, expending tens of thousands of dollars to prevent the disclosure of these minutes or defend the culpability of the three city councilors who improperly thought a second unlawful closed meeting would cure their first and who led the decision go to court to shield their guiltiness when they could have made a commitment to transparency in government.
Councilor Lenius was the one who basically said the 'meter was running' and decided against negotiating a way out of the problem and chose to have me go through the litigation process, but he's not one of the named councilors on the lawsuit (Miller, Bourgette, and Stibitz-Rozelle are). All they would have had to do was provide the minutes of the two unlawful closed sessions, they could have even properly redacted some information from them, but nope they would not do the minimal task of voting to allow the release of the minutes being that the two sessions were unlawful.
Hubris prevented them from doing the right thing and I hope they gain a little humility when this comes back from the appeals court, because it will likely still have to be litigated more at that point. They fail to realize that the decision they made to force a lawsuit not only wastes a lot of resources for both of us, but makes me even more certain that the council is crooked and keeps me in the game as an adversary rather as an ally for a couple more years at least.
It's obvious that they are like me in one way and have a commitment based on principle. My commitment is in seeing that meetings are properly noticed and open to the public, in seeing that closed sessions only occur when it is legitimate to do so, and in seeing that non-exempt public records are shared with the people, their rightful owners.
Their commitment is to the exact opposite, and spending public dollars to defend their antidemocratic and antisocial values.
How did the individual councilors vote on this decision? It would be helpful to know.
Are they all sheep?
Here's the relevant part of the 2-10-2020 meeting minutes:
As you can see, they all voted to support Councilor Lenius' and Councilor Miller's false assertion that litigation was unavoidable, Lenius remarked he would like to see me sue the City. Sure, why not Joe, it doesn't cost you any extra time and money to defend you and your peers blatantly violating the OMA twice and not wanting to be held accountable for it. Councilor Serna even went along with it, but she didn't fully understand the issue at the time, having missed the original meeting where the violation occurred.
The Council's stand on this makes no sense, especially when this is a slam dunk for the peoples right to know. Why ignore the advice of the attorney. Something fishy going on here. Sorry X, I don't believe they are doing this out of their commitment to principles. In fact they are doing just the opposite. Each Councilor who voted for this should publicly give their reasons for doing so.
No need to apologize; Willy, if you carefully read my words once again talking about their commitment to principles, you may notice that I was (perhaps clumsily) trying to relate that they have a principled commitment towards bad government policies and acts. The best villains have a principled commitment to evilness.