October 2, 2015

Stars, hide your fires–government transparency in Washington

By Ethan W. Blevins Attorney
If only the witches of Macbeth had opened their meetings to the public
Maybe the tragedy of Macbeth would have had a happier ending if the witches had opened their meetings to the public

The tragic figure Macbeth said, “Stars, hide your fires; Let not light see my black and deep desires.” Enlightened decisions don’t flourish in shadow. Likewise, good government means open government. As James Madison wrote, “a popular government, without popular information, or the means of acquiring it, is but a prologue to a Farce or a Tragedy or, perhaps, both.”

Sadly, the Supreme Court of Washington yesterday opted for tragedy by dealing a blow to transparency in government.

Washington’s Open Public Meetings Act requires that governing bodies expose their meetings to the public, with exceptions for a handful of sensitive issues. This transparency requirement also applies to committees of a governing body that act on its behalf.

San Juan County had proposed new critical area ordinances that aroused controversy because of the burdens the laws would foist on property owners. Weighty decisions affecting the community should involve public participation. However, the County sheltered key deliberations from the public eye. The County used a committee composed of three of the six-member county council along with county staff to discuss the proposed ordinances. This committee held twenty covert meetings regarding issues that would have serious ramifications for County residents. The County, relying in part on the conclusions drawn by this secret committee, passed four heavy-handed critical area ordinances. The Citizens Alliance for Property Rights sued, claiming that the County violated the Open Public Meetings Act. PLF filed a brief in support, urging the Court to side with transparency.

Nonetheless, the Supreme Court decided the County did not violate the Open Public Meetings Act. Half the council attended these meetings. This voting bloc was large enough to thwart any action by the council. Yet the Court concluded that meetings with half of the County’s voting leadership could occur behind closed doors.

According to the Court, the committee was not a committee of the county council. The council hadn’t created the committee, said the Court, so the committee was not subject to open meetings requirements. Certainly, not all County staff get-togethers are “committees” of the county council. But this wasn’t the San Juan County staff poker night. The committee was composed of half the council, and it had specific assignments to analyze key scientific data necessary for the critical area ordinances.

Even if the committee was a committee of the council, however, the Court said the committee still didn’t act on the council’s behalf. But the committee spent its meetings deliberating on key matters of public policy to help the council draft controversial law. Thinking is pretty important to public policy decisions. If someone else does the thinking for a governing body, doesn’t that someone act on its behalf?

The Supreme Court’s decision creates an easy out for local governments that don’t want to bother with public opposition to their ideas. They can now concoct policy through smaller deliberative bodies in the pleasant shade of obscurity. This surely makes government’s life easier. But for the public they’re supposed to represent, the result is tragic.

 

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