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Lawsuit accuses Seattle of violating open-meetings law before head-tax repeal vote

People fill seats before a Seattle City Council meeting where the council was expected to vote on a “head tax” Monday, May 14, 2018, in Seattle. (Elaine Thompson / Associated Press)
People fill seats before a Seattle City Council meeting where the council was expected to vote on a “head tax” Monday, May 14, 2018, in Seattle. (Elaine Thompson / Associated Press)
By Lewis Kamb Seattle Times

Three trial lawyers sued the city of Seattle Thursday over the City Council’s abruptly called special meeting and vote this week to revoke a head tax on big businesses, alleging that in its haste to repeal the controversial ordinance, Mayor Jenny Durkan and a council majority “repeatedly violated” the state’s Open Public Meetings Act.

The attorneys — James Egan, identified as the case’s plaintiff, and Julie Kays and Lincoln Beauregard, who are representing Egan — contend in the lawsuit filed in King County Superior Court that “without any public debate, and with pressure of a repeal referendum growing,” Council President Bruce Harrell on Monday announced the special meeting to conduct the repeal vote.

“Prior to the announcement, it was expressed and understood that Mayor Jenny Durkan, along with the City Councilmembers at issue, Bruce Harrell, Sally Bagshaw, Lorena Gonzalez, Lisa Herbold, Rob Johnson, Deborah Juarez, and Mike O’Brien, had reached an agreement, via unlawful clandestine discussions, to repeal the original ordinance enacting the head tax,” the suit states.

The lawsuit, which relies heavily on details from a Seattle Times online story posted Monday, also contends the city’s public notification of the special meeting violated the state law requirement for special meetings that such notices be given 24 hours in advance of the meeting.

The lawyers’ suit seeks that each of the named city officials be fined and that the city bear all of their legal fees and costs, but it doesn’t ask that the council’s vote to repeal the head tax be invalidated.

“To be clear, this lawsuit does not challenge the legitimacy of the ultimate vote, only the clandestine tallying and debate,” the suit states.

Neither Durkan, Harrell nor City Attorney Pete Holmes immediately responded to requests for comment Thursday morning.

It’s unclear whether the lawsuit could affect whether the big business-bankrolled “No Tax on Jobs” campaign will opt to submit the required 17,0000 signatures needed by a 5 p.m. Thursday deadline to qualify a citywide referendum asking voters to repeal the tax.

A consultant for the campaign declined to comment Thursday.

Harrell and other council members who cast votes to repeal the tax had sought to avoid the need for the anti-tax campaign to submit its signatures.

Backed by Amazon, Vulcan, the grocery industry and others, the campaign has amassed nearly 46,000 signatures and $380,000 in contributions to repeal the initial council vote in May that unanimously approved the Employee Hours Tax.

By a 7-to-2 vote on Tuesday, the council repealed the $275-per-employee head tax on the city’s 585 largest business. The tax was set to take effect in January.

The day before the vote, Durkan and all seven council members who would later cast votes to revoke the tax issued a joint statement, citing a “prolonged, expensive political fight” as the need for a vote to reconsider the measure.

Some council members later said that negative public polling and mounting contributions to the repeal campaign spelled trouble for the measure.

The way the city handled the repeal process raised questions among several open-government advocates, who said that the elected officials appeared to have secretly deliberated about the issue in violation of the law.

Washington’s Open Public Meetings Act requires that a government body’s “actions be taken openly and that their deliberations be conducted openly.”

“I find all of this very disturbing,” Seattle attorney Michele Earl-Hubbard said Tuesday about the circumstances surrounding the City Council’s special meeting. “Not only does it appear that the mayor and a majority of the council colluded behind-the-scenes to reach some collective thinking on holding a meeting about this issue, but they’ve put it out there in a press release in black and white.”

Toby Nixon, board president of the nonprofit Washington Coalition for Open Government, has said the open-meetings law and prevailing case law have determined an illegal meeting can occur even when a quorum of a government body doesn’t meet in the same physical site.

It can also happen through a chain of phone calls or written messages, or when a third-party, such as a mayor or a surrogate, acts as a go-between to convey information to individuals so that a collective meeting of the minds occurs on an issue.

Council members Bagshaw and Johnson also told The Times this week they’d been told before the vote that a majority of council members supported a repeal.

Egan, Kays and Beauregard, the attorneys who sued the city Thursday, have all previously challenged the city in past high-profile legal battles.

Beauregard, who represented Delvonn Heckard — the first man to last year publicly accuse former Mayor Ed Murray of sexual abuse and defamation — cited his past experiences with the city. He noted that in July, when Gonzalez sought to formally call on Murray to resign, Councilmember Sally Bagshaw appeared to be lining up votes behind-the-scenes to resist Gonzalez’s effort.

“That’s just one other example,” Beauregard said Thursday. “If we were assured that they were never going to do this again, we wouldn’t need to file the lawsuit. But unfortunately, this has been a pattern: What’s happening in the city of Seattle is these elected officials are not following the law for political purposes, because they don’t want to be challenged on their decisions. We think that’s wrong and that the public deserves to be part of the process.”

All three of the lawyers now suing the city are opponents of the head tax, Beauregard said.

“We’re all three against it,” he said. “I mean, I disagree with every word that comes out of Kshama Sawant’s mouth, but she and the people she represents have a right to participate in a public process.”

In another twist Thursday, the case against the city was assigned to King County Superior Court Judge Veronica Alicea-Galvan, who issued sanctions against Beauregard during last year’s lawsuit against Murray.

Beauregard, who has appealed the sanctions, said Thursday he believes Galvan should recuse herself from the new case because of what he described as the judge’s friendship with Gonzalez.

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