What is Executive Session

Recent stories in The News Tribune about the City of Tacoma's executive session discussions on police conduct have come back to me in what makes for a good "Question of the Day." Just what the heck is executive session anyway?

Open Public Meetings Act

This is another one of those simple answer, difficult explanation times. Basically an executive session is a closed door meeting of a local jurisdiction's legislative body. Normally, the Open Public Meetings Act (OPMA), and common sense, dictates that people have the right to see their representatives conduct the public's business. In fact it's opening declaration is, in my opinion, one of the most beautifully written expressions of representative democracy short of Jefferson.

"The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created."

You can probably see why newsies love to quote it. It sounds like it was written by thunderbolt onto stone tablets.

Executive Session

However, OPMA also acknowledges that there are some discussions that would inherently harm the public's interest. For that reason, with notice, the legislative body can go behind closed doors to discuss certain issues. Broadly speaking they can be held to discuss:

1. Issues of national security (ok, it's never happened, but I feel like James Bond saying it)
2. Real estate transactions
3. Potential and pending litigation
4. Evaluation of candidates for office or employment
5. Personnel discipline

There are some other situations that almost never come up so I'll avoid confusing the issue further. Basically the standard is that if the information was made public, it would cost the jurisdiction money.... with the exception of disciplining personnel. In that case it's more about protecting employee rights. However, the employee may demand that meeting be held in public if they so wish.

As an example, let's say the City is considering purchase of a property for a park. Just to deal with round numbers let's say the asking price is $1 million. That's a little steep for the City and we think it's worth less so we offer $850,000. However, the Council might also tell the negotiating team that they'd be willing to go as high as $925,000. If that meeting were to be held in public as state law normally demands, obviously the seller would know how much they can get, when they might have been willing to settle for much less.

For lawsuits the premise is basically the same. When meeting with the City Attorney the Council must be free to discuss legal strategy including strengths and weaknesses as well as potential settlements. If we were having that discussion in public, it would be a bit like playing poker when only your cards are showing. Even if you have a strong case the public is at a serious disadvantage.

I should note that all actions still must be made in public. So in the property purchase example above, the Council must vote to direct staff to make the offer or to accept a counteroffer from the seller. This is where some Councils get tripped up. Savvy reporters might notice that there is no discussion before the action takes place, for or against, and that it appears the vote has already taken place. These are called "straw votes" and are illegal.

The Legislature

If you've been to the Legislature this all might seem very confusing. It should be. That's because they exempted themselves from OPMA. Very little of what happens in public is not already scripted behind closed doors in caucus meetings where the party's meet to decide how things will go. Votes simply are not called without knowing the outcome in advance. Even the term Executive Session has a different meaning and is used for the time when committees vote after public hearing. TNT columnist and longtime Olympia observer Peter Callaghan wrote a piece on this not long ago in which I said:

“Governing in secret is one of the few truly bipartisan issues,” commented Gig Harbor Councilman Derek Young on our Political Buzz blog. “When they want to play open government, they come up with some new rule for local government to follow and bask for a time in the ‘sunshine.’ “Local electeds screw up on occasion, but for the most part, doing things in secret and then scripting a kabuki theater for the public to see would seem pretty bizarre to us.”

Its true that meeting in private might result in a more honest and open discussion as people would be free from saying something unpopular or embarrassing. But I've always thought that this is exactly why they must be as open as possible. There's usually a very good reason people are uncomfortable saying something publicly, they don't think their constituents will like it. That hits to the very core of representative democracy.

Please feel free to write in with your questions and comments about the City of Gig Harbor or local government in general and I'll try to answer them here.

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