Miller v. City of Tacoma

Madsen, J.

(concurring/dissenting) — Because the Tacoma City Council did not take prohibited action in executive session, I disagree with the majority’s analysis in this case. However, appellant Cheryl Miller was not an applicant for public employment within the meaning of RCW 42.30-.110(l)(g), and therefore the exception permitting evaluation of the qualifications for such applicants in executive session does not apply. Accordingly, despite my disagreement with the majority’s analysis, I agree with its conclusion that the city council’s action violated the Open Public Meetings Act of 1971, RCW 42.30.900.

ADDITIONAL FACTS

The majority is able to reach its result by basing its analysis on an incomplete statement of the facts. Although the majority concludes that substantial evidence supports the trial court’s challenged findings of fact, it fails to set forth a key finding which Ms. Miller challenged, as well as other significant findings. Challenged finding of fact 8 states: “No motions were made or adopted in the Executive Ses*333sion. No Council member was bound by any poll taken in the Executive Session, nor bound as to how he or she would vote upon the appointment resolution.” Clerk’s Papers (CP) at 284. In addition, unchallenged finding of fact 5 states that “[i]n Executive Session, the Council deliberated on and gave opinions of the three remaining candidates .... As part of the deliberation, the Council members took opinion polls of themselves by marking sheets of paper with the names of candidates printed thereon.” CP at 283. Unchallenged finding of fact 9 states that “No Council member was committed as to how they would cast their vote on the resolution for appointment to the Planning Commission at the meeting of June 13, 1995. Some of the members of the City Council changed their minds during the interval between June 6 and June 13, 1995, as to who they would vote to the Planning Commission position.” CP at 284. These findings are contrary to the majority’s view that the council made a secret decision choosing the final candidate in executive session.

Substantial evidence supports the findings. Council member McGorvick did not recall using paper, but testified that “it wasn’t a vote situation!!,]” that there was debate and interaction as to the relative qualifications of the candidates, and that there was “a lively discussion.” Verbatim Report of Proceedings (RP) at 110. Council member DeForrest testified that they voted in secret, but added that he was not bound by the vote and was open to being lobbied by other members. Mayor Moss testified that without further action after the executive session, there would have been no appointment to the planning commission. He testified that “everyone who had an opinion had the opportunity to speak it and they did[,]” that members expressed pros and cons as to the candidates, that there was no motion before the council, that none of the council members were bound by anything which occurred in the executive session, and that in the week before the June 13, 1995, meeting he was available to be lobbied for his vote on any of the candidates. RP at 42. Council member Miller testified that there was “quite an exchange of comments *334among Council members.” RP at 130. Although he did not recall if all members participated, he recalled that a significant number participated; he described “fairly extensive discussion.” Id. He understood the purpose of the executive session was to see if there was a consensus. He testified that no binding action was taken at the executive session, and that there were no motions or resolutions presented or passed at the executive session. He testified that he knew “personally that [he] could change [his] vote at any time up to” the time of the adoption of the resolution appointing Mr. Thompson at the June 13 open meeting. RP at 136. Council member Kirby testified that he was not committed to make any vote at the open meeting held June 13, and that in fact at the last minute he changed his vote. Council member Evans testified that he did not consider “them ballots. It was straw polls or something. We were told in advance and we were told several times during the meeting that they were not votes as such. So, they were, what, records of opinions at the moment, nothing more.” RP at 163. He also said that most of the council members expressed their preferences at the executive session, and that the matter was in flux between the time of the executive session and the June 13 meeting. Council member Silas testified that the balloting was an assessment of the applicants to try to ascertain the feelings of the council as to the candidates.

Moreover, the council returned to the open meeting after the executive session, and a motion was made and seconded that a resolution be presented at the next week’s council meeting to appoint Thompson to the planning commission. Also, substitute resolutions were prepared in the event that the resolution appointing Mr. Thompson did not pass at the open meeting on June 13, 1995. Further, at that meeting the public was given the opportunity to speak on the resolution. The Mayor asked if there were “[a]ny further questions by members of the Councilf,]” and said, “[i]f there are [sic] no further discussion, is there anyone in the audience wishing to speak for or against the resolution before us.” CP at 8 (transcribed report of videotaped *335proceedings). Thereafter, the vote on the resolution appointing Mr. Thompson was taken.

In light of the substantial evidence supporting the findings, there is simply no merit to the conclusion that the council members voted at the executive session to make a final choice of Thompson as the consensus candidate.

ANALYSIS

Whether Prohibited Action Taken During Executive Session

Under RCW 42.30.110(l)(g), the council was authorized to hold an executive session “[t]o evaluate the qualifications of an applicant for public employment or to review the performance of a public employee.” Assuming that Ms. Miller was “an applicant for public employment[,]” an issue which the majority does not address, the question is whether the council’s action in executive session falls within this exception to the requirement of open public meetings. I believe that it does.

As noted, the facts do not support the majority’s conclusion that the council voted at the executive session to choose a final candidate. Instead, as the trial court found, and substantial evidence supports its findings, the members participated in nonbinding opinion polls as part of the deliberations and expression of opinions about the candidates. The members discussed the candidates, gave opinions, and expressed preferences on paper as the discussion ensued and the opinion polls were taken. The council members were not bound by the balloting at the executive meeting and were open to being lobbied during the week before the open meeting. These activities fall squarely within the definition of evaluation advanced by the majority. Majority at 328 (evaluate means “to examine and judge concerning the worth, quality, significance, amount, degree, or condition of” (emphasis added)). Moreover, these activities are the kind of deliberation essential to evaluation of the candidates and their qualifications. The council did not engage in prohibited action in the executive session.

*336Nor did the council engage in final action in the executive session. “ ‘Final action’ means a collective positive or negative decision, or an actual vote by a majority of the members of a governing body when sitting as a body or entity, upon a motion, proposal, resolution, order, or ordinance.” RCW 42.30.020(3). The trial court found that “[n]o motions were made or adopted in the Executive Session.” Findings of Fact and Conclusions of Law at 4 (finding of fact 8). As explained above, there is substantial evidence supporting this finding. There was no “actual vote” on any motion, resolution, order, or ordinance. Nor was there any collective positive or negative decision because none of the members was bound by anything that occurred in the executive session. Moreover, at the public meeting held June 13, 1995, there was opportunity for members of the public to speak for or against the resolution appointing Mr. Thompson.

As the Pennsylvania court in Morning Call, Inc. v. Board of School Directors, 164 Pa. Commw. 263, 270-71, 642 A.2d 619 (1994) reasoned:

Just because a “vote” is taken in executive session does not mean that it is an “official action” as defined under [Pennsylvania’s] Sunshine Act. To be a vote constituting official action . . .it must be on a matter that commits the agency to a course of conduct. When an agency eliminates candidates in executive session through a “straw vote”, that vote is not official action contemplated by the Sunshine Act that must take place in public, but is part of that discussion and deliberation authorized to be conducted at a private executive session, or, as the trial court found, “really nothing more than a further rating and ranking of these non-finalists.” Here, the vote required to be taken publicly as envisioned by . . . the Sunshine Act is the one that commits the Board to hire a specific person as superintendent.

(Emphasis added.)

Similarly, here, the discussion and balloting in the executive session did not commit the council members to any course of conduct, and constituted part of the rating and *337ranking of the candidates, i.e., part of the evaluation of the candidates’ qualifications.

I would hold, in light of the substantial evidence supporting the trial court’s findings, that the council members’ conduct in executive session fell within the scope of evaluating the qualifications of the applicants for the planning commission. Therefore, assuming that the applicants were applicants for public employment, the council took no prohibited action during the executive session.

Whether Candidates Were Applicants for Public Employment

In fight of its analysis the majority does not (and need not) address the issue whether the applicants for the planning commission were “applicant^] for public employment” within the meaning of RCW 42.30.110(l)(g). The statute provides that the city council may meet in executive session:

To evaluate the qualifications of an applicant for public employment or to review the performance of a public employee. However, subject to RCW 42.30.140(4), discussion by a governing body of salaries, wages, and other conditions of employment .to be generally applied within the agency shall occur in a meeting open to the public, and when a governing body elects to take final action hiring, setting the salary of an individual employee or class of employees, or discharging or disciplining an employee, that action shall be taken in a meeting open to the public[.]

RCW 42.30.110(l)(g). The issue here is whether a candidate for a position on the planning commission is “an applicant for public employment.” The planning commission is a public body that advises the city council on zoning, land use and environmental matters, and its members serve without compensation. The statute is not clear whether uncompensated members of public, advisory commissions fall within RCW 42.30.110(l)(g). This is because it is possible to read the statute as encompassing only those who are applying for public employment which will be compen*338sated, as a public employee, or to read it in a broader sense as referring to applicants for positions involving time-consuming activity of a public nature. Accordingly, well-settled principles of statutory construction provide the framework for deciding the scope of the exception.

Where a statute is susceptible to more than one meaning, the court’s primary goal is to determine legislative intent. In re Sehome Park Care Ctr., Inc., 127 Wn.2d 774, 778, 903 P.2d 443 (1995). The overall intent of the Open Public Meetings Act is that governmental bodies take actions openly and conduct deliberations openly. RCW 42.30.010. The act is remedial, and the Legislature has commanded that it be liberally construed. RCW 42.30.910. In accord with the mandate that the act be construed liberally, its exceptions must be narrowly construed. Mead Sch. Disk No. 354 v. Mead Educ. Ass’n, 85 Wn.2d 140, 145, 530 P.2d 302 (1975); see Marquis v. City of Spokane, 130 Wn.2d 97, 108, 922 P.2d 43 (1996) (statutory mandate of liberal construction requires that the court view with caution any construction which would narrow the coverage of the law).

Turning to RCW 42.30.110(l)(g), an additional relevant principle of statutory construction is that in ascertaining legislative intent, a statute must be read in its entirety and the various provisions read in light of one another. Sehome Park Care Ctr., 127 Wn.2d at 778; Western Petroleum Importers, Inc. v. Friedt, 127 Wn.2d 420, 428, 899 P.2d 792 (1995). RCW 42.30.110(l)(g) refers to two permitted actions in executive session: evaluation of the qualifications of an “applicant for public employment” and review of the performance of a “public employee.” The statute adds a proviso requiring that matters of salaries, wages, other conditions of employment and “final actions” involving “employees” must be made in public. Bearing in mind that construing the statute requires that this court look beyond “the single phrase at issue[,]” Sehome Park Care Ctr., 127 Wn.2d at 778, consideration of the subsection as a whole leads to the conclusion that it concerns employment issues pertaining to both prospective and current employment of *339individuals. Before hiring, an applicant is not a “public employee,” but is instead an applicant for “public employment.” A public agency may review in executive session the performance of one already working as a public employee, and to evaluate in executive session the qualifications of individuals seeking employment. Thus, the same positions are contemplated by the phrases “applicant for public employment” and “public employee.” The most common definition of “employee” is: “One who works for an employer; a person working for salary or wages.” Black’s Law Dictionary 525 (6th ed. 1990). RCW 42.30.110(l)(g) concerns compensated positions.

This reading is borne out by the first part of the proviso which concerns the requirement that discussion of “salaries, wages, and other conditions of employment” take place in open public meetings. Id. In RCW 42.30.110(l)(g) the Legislature addressed personnel matters involving prospective and existing employees and defining when and to what extent such matters may be considered in executive session and must be considered in open public meetings.

Other provisions in the statute are also relevant in determining the meaning of RCW 42.30.110(l)(g). RCW 42.30.110(l)(f) provides that a public agency may in executive session “receive and evaluate complaints or charges brought against a public officer or employee.” RCW 42.30-.110(l)(h) provides a public agency may “evaluate” in executive session “the qualifications of a candidate for appointment to elective office.” The Legislature could have referenced “public office” or “public officer” in RCW 42.30-.110(g), but did not do so. The uses of different terms in the subsections are significant because the Legislature’s use of certain language in one instance but different language in another demonstrates a difference in legislative intent. United Parcel Serv., Inc. v. Department of Revenue, 102 Wn.2d 355, 362, 687 P.2d 186 (1984).

A “public officer” need not be paid a salary or other remuneration. See Oceanographic Comm’n v. O’Brien, 74 Wn.2d 904, 914-15, 447 P.2d 707 (1968). Because a public *340officer may be uncompensated, omission of “public officers” from RCW 42.30.110(l)(g) is consistent with the scope of the subsection (addressing matters concerning compensated employees). However, it does not follow that RCW 42.30.110(l)(g) does not apply to any and all public offices. A public officer may be a public employee in the sense of having a salary or wages and other conditions of employment. Thus, as used in the statute, while “public employment” and “public employee” would not include individuals applying for or in uncompensated positions, the terms are broad enough to include public officers who are also employees in paid positions. Cf. Hsieh v. Civil Serv. Comm’n, 79 Wn.2d 529, 534-35 n.2, 488 P.2d 515 (1971) (contrasting general public employment “with employment which arises to the status of public office or position”).

Principles of statutory construction are tools used to determine the meaning of an enactment when that meaning is not plain from the statutory language, and they strongly favor the conclusion that applicants for the planning commission are not applicants for public employment within the meaning of RCW 42.30.110(l)(g) because they are not applicants for paid positions. The most important guide here, however, is the legislative declaration of intent—that the Open Public Meetings Act is remedial and must be liberally construed to achieve the purpose of public deliberations and decision making in open meetings. In satisfying this legislative declaration of public policy, a statutory provision which does not clearly permit an exception to the requirement of open public meetings should not be construed by this court to provide one. RCW 42.30-.110(l)(g) does not appear to encompass positions like membership in the planning commission, much less clearly so.

Planning commission positions are not elective positions, nor are the members compensated. Because the positions are not elective, evaluation in executive session of the qualifications of applicants to the commission is not permitted under RCW 42.30.110(l)(h). Because the members are *341not compensated as public employees, evaluation in executive session of their qualifications is not permitted under RCW 42.30.110(l)(g). In short, the statutory scheme requires that consideration of applicants to the planning commission occur in open public meetings.

Arguably, there is room to ask why such individuals’ qualifications should not be considered in executive session. However, as this court has often observed, it is not the court’s province to pass on the wisdom of statutory provisions which must be construed. E.g., Vashon Island Comm. for Self-Government v. Washington State Boundary Review Bd., 127 Wn.2d 759, 773, 903 P.2d 953 (1995); St. Francis Extended Health Care v. Department of Soc. & Health Servs., 115 Wn.2d 690, 707, 801 P.2d 212 (1990); Duke v. Boyd, 133 Wn.2d 80, 87, 942 P.2d 351 (1997).

In any case, reasons for the distinctions drawn by the statute come to mind. The 1985 amendments divided former RCW 42.30.110(l)(d) into present subsections (f), (g) and (h), and expressly required that the setting of salaries, wages and other conditions of public employment be public. In an opinion predating the amendments, the Court of Appeals noted that the main motivation behind personnel management exceptions to sunshine acts is that a government will be able to operate more efficiently where it can organize and staff in private because it is unrealistic to expect candid criticism in public, given the danger of unintended personal tones. Also, the public’s need to know is not so critical as in other areas. Port Townsend Publ’g Co. v. Brown, 18 Wn. App. 80, 84, 567 P.2d 664 (1977) (quotation and citation omitted). When holding that independent contractors are not “public employees” for purposes of an exception in California’s sunshine act, the court similarly opined that the Legislature may have concluded.that the public interest was not as great “in the case of ordinary employees, whose relationship to the public agency is of a continuing nature, who work under closer supervision, and whose engagement is not likely to entail the same degree of public interest[.]” Rowen v. Santa Clara *342Unified Sch. Dist., 121 Cal. App. 3d 231, 235, 175 Cal. Rptr. 292 (1981).

Similarly, Washington’s present scheme permits the evaluation in executive session of the qualifications of those who will become ordinary employees of a public agency. RCW 42.30.110(l)(g). In addition, due to the 1985 amendments it is clear that where a compensated position rises to the status of a public office, RCW 42.30.110(l)(g) authorizes evaluation of applicants’ qualifications in executive session, but requires that salary, wage, and other conditions of employment be addressed in public. This serves the goal of the 1985 amendments to assure that setting of salaries be public. See Laws of 1985, ch. 366, § 2; CP at 156-59 (Mem. from Att’y General’s Office describing history of amendments).2

RCW 42.30.110(l)(h) permits evaluation of the qualifications of candidates for appointment to elective public office in executive session, and directs that in the case of candidates for appointment to any elected public position, interviews must be conducted in an open public meeting. This subsection necessarily includes evaluations of candidates for appointment to noncompensated elective positions. While the public’s interest in evaluation of appointees to elective office is likely greater than it is where public employees in general are involved, the private evaluation allowed by the exception in RCW 42.30.110(1)(h) is counterbalanced by the fact that in time the electorate will have the final say on who serves in the office.

The statute does not permit, however, the evaluation in executive session of the qualifications of individuals applying to noncompensated nonelective public positions. The public interest in their activity is apt to be significant. Such individuals may have considerable impact on the course of *343government activity. Perhaps because they are not ultimately subject to the elective process nor to the strictures generally associated with compensated employment positions, their evaluation and selection must be made in open public meetings. Regardless of the reasons underlying the statutory provisions, it is the Legislature’s prerogative to define exceptions to the requirement of open public meetings, and not for this court to create exceptions.3

CONCLUSION

I would hold that if RCW 42.30.110(l)(g) applied, the council’s actions were within the scope of the exception and no violation of the Open Public Meetings Act occurred. However, for the reasons set forth in this opinion, RCW 42.30.110(l)(g) is inapplicable because applicants for appointment to the planning commission are not “ applicant [s] for public employment.” Therefore, while I depart from the analysis of the majority, I concur in its result.

In that a formal Attorney General Opinion construing a statute, while entitled to great weight, is not binding, it follows that an informal interpretation of a statute is less so. See Seattle Bldg. & Constr. Trades Council v. Apprenticeship & Training Council, 129 Wn.2d 787, 803, 920 P.2d 581 (1996). Nevertheless, the memorandum describes history of the 1985 amendments which indicates legislative intent that the fixing of public officers’ salaries occur in public.

The Legislature could, of course, amend the statute and provide public agencies with authority to consider in executive session the qualifications of applicants for positions like the Tacoma Planning Commission.