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Public openness urged with Planning Commission

Facilitator: Honor planning recusal requests

A facilitator on Monday suggested the Spokane Valley Planning Commission adopt new policies regarding recusals and absences, and urged members to be aware of how their actions appear to the public.

The meeting, with Stan McNutt, a troubleshooter with the International City/County Management Association, was called in response to a commissioner’s need to recuse herself from some discussions, as well as concerns about potential public meeting law violations.

The problem came to light after commissioner Marcia Sands announced that she was recusing herself from all discussions on the Shoreline Master Program update. The state-mandated update must be approved by the Department of Ecology. Sands is a DOE geologist and was told by her employer not to participate in the discussions to avoid the appearance of a conflict of interest.

Four of the remaining six commissioners voted last month not to excuse Sands’ absence – after Sands expressed concerns the Open Public Meetings Act was being violated when she saw four commissioners talking in the parking lot after a meeting. Sands said he four told her they were deciding where to go out for beer. Four commissioners is a quorum.

Commission chairman Bill Bates complained Monday that commissioners are not given any training in their duties but are just handed packets of information.

“I don’t think that’s enough,” he said. “I think we need to take a hard look at how new people come aboard.”

McNutt recommended that the planning commission make several changes to its policies and rules of procedure. He said the commission should consider adopting a statement of guiding principles and expand the code of conduct. The code of conduct should include language making it clear how and when to vote to excuse a commissioner.

“It never hurts to simply defer until you have some better information,” he said.

McNutt also proposed language stating that while commissioners may gather informally in groups smaller than a quorum, commissioners should be aware of any appearance of a violation.

“It’s very hard in most things to meet together and not discuss official business,” he said. “The very appearance of that can be suspect and misunderstood.”

Bates said the commission has been doing good work and works well together.

“We may have gotten off track a little bit in recognizing when to defer something and when to discuss it right then and there,” he said. “I don’t think we got good information on some of this from city staff and the city attorney. We were flying blind.”

Commissioner Steven Neill said he was concerned that the proposed new language didn’t include anything about a planning commissioner stepping down if they were going to miss a lot of meetings. All planning commissioners and council members “need to show up,” he said.

McNutt said if there is a conflict on only one issue before the commission there is no need for someone to step down.

“We’re not talking one meeting,” Neill said. “We’re talking several meetings. Let’s get that on the table.”

The best practice is to honor all recusal requests unless the request is “totally arbitrary and capricious,” McNutt said. This is done because of the nature of the commission’s work, he said. “There can be a lawsuit against this board or the city no matter what you do,” he said.

Sands said she would “talk about the elephant in the room” and said she notified the city that she would have to recuse herself from all shoreline discussions when she got a new job with the Department of Ecology about 18 months ago. She also sent an email in March that was read aloud at a planning commission meeting. Her recusal was never an issue before the last meeting, she said.

Bates said he was unclear on the procedure to handle a recusal. “Had we known the procedure, we never would have had to take a vote,” he said.

The argument about needing more training only goes so far, said commissioner Rustin Hall, and “then it becomes a crutch. You cannot legislate ethical behavior. Either you’re ethical or you’re not.”

McNutt also discussed updating rules regarding the use of email for official business. It is possible to violate the Open Public Meetings Act by having a “serial meeting” via email, McNutt said. That happens when someone sends an email that generates responses. A discussion that involves less than a quorum might not be a technical violation of the law, he said, “but we’ve talked about appearances.”

McNutt urged the commissioners not to communicate with each other via email and if they do receive something not to respond to it. “Even one-way communication in some cases can constitute a meeting if it’s about current, active things before the commission,” he said.

Emails can also be requested under the open public records act “if you mention city business in any way, shape or form,” McNutt said.

Commissioner Rod Higgins said the planning commission is responding to just such a public records request right now and called it “troubling.”

“I think it’s inappropriate that it even happened in the first place,” he said. “We’re talking about questioning the very integrity of everyone sitting around the table.”

The Spokesman-Review recently submitted a public records request to the city asking for copies of emails sent to and by all the planning commissioners.

McNutt said public officials need to embrace the public’s right to know.

“The public has a right to our communications when we talk about city business,” he said. “It comes with the territory. We have to have thick skins in this business.”

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