Legality of disclosing executive session information not always an easy call

  • By Sharon Salyer Herald Writer
  • Monday, February 28, 2011 12:01am
  • Local News

EVERETT — When elected officials meet in closed-to-the-public executive sessions, what can they say about what was discussed?

This was one of the key issues in the censure approved last week by the Everett School Board of fell

ow board member Jessica Olson.

The censure alleges that Olson disclosed confidential information from executive sessions about potential real estate purchases, in violation of board policy and state law.

State law says a single board member may not unilaterally disclose confidential information. But as the state’s open government ombudsman notes, exactly what is confidential information isn’t clear.

As one example, information available through public research or through a public records request is not confidential.

The underlying issue — questions over government openness — are far broader than just the ongoing dispute among Everett school board members.

As the case shows, these questions sometimes involve big decisions with millions of taxpayer dollars at stake.

The Everett School Board was considering the purchase of the $25 million, 289,000-square-foot Frontier Communications building. It would have been used as an administration building and as space for Washington State University to potentially use for a new branch campus.

Four board members felt that public statements made by Olson on Facebook posts and in The Herald’s online comments disclosed too much about the deal.

Olson disagreed, saying she felt the public had a right to know far more about the details, since taxpayers would foot the multimillion-dollar bill.

“She clearly does not understand real estate transactions,” said Ed Petersen, board president. “The fact that we were negotiating for acquisition of a site in executive session is confidential information.”

Petersen, as executive director of Housing Hope, which provides housing for the homeless and low-income families, is often involved in real estate transactions.

Petersen said he feels that all executive session conversations surrounding the school district’s potential land deal should remain confidential until more pieces of the proposal were firmed up.

The board consulted its attorney so it could be advised on the law on executive sessions: what could be discussed during these closed sessions, he said.

“The degree to which the seller became aware that WSU was a potential player in this situation could increase the price,” Petersen said. “We did not want that to be public because it could cause the taxpayers to pay more in an eventual transaction.”

Everett Community College recently ended up paying approximately $1 million more than planned when a potential land deal became public, Petersen said. “Competition went in and drove the price up.”

The school board planned to have an open public discussion of the proposal when more details were in place, Petersen said.

Olson “portrays this as if the decision was being made,” he said. “That is absolutely not the case.”

However, the school board didn’t publicly disclose the deal until it was officially called off earlier this month.

Would Olson’s disclosure have, in fact, increased the purchase price?

“I wouldn’t say the price went up,” Petersen said. “It’s the principle of the matter. … There was no effort here to violate the public trust.”

But the sellers “were probably gleaning a lot of information from the material generated outside executive sessions by one board member.”

Olson, in her formal rebuttal to the censure, agreed that a specific site or building to be purchased should not be publicly disclosed while negotiations are under way. The School Board was well within legal rights to talk about the issues in executive session, she said in her statement.

“But we discussed much more than that,” Olson’s statement says. “We talked of potential tenants, we talked of partnerships with other public agencies; we spoke of financing the purchase through leasing portions of it, and we spoke of the percentage (of the building) we would occupy, among other things.

“These are things that in no conceivable way would be likely to increase the price if the building entity itself was unknown.”

Toby Nixon, president of the Washington Coalition for Open Government, said the debate in Everett is just one example of those heard around the state over which issues talked about in executive sessions should be publicly disclosed.

“There’s nothing in the Open Public Meetings Act that says simply because something is discussed in executive session that it’s deemed confidential,” Nixon said.

It would be unethical and a disservice to the public to keep confidential information that should have been discussed in open session in the first place, he said. “I’m with Jessica.”

Last year, the organization gave Olson an award in recognition of her work to make government in Washington open and accountable to the public.

So who’s right? Short of going to court, there’s no way to know.

Proposals to help find answers to questions such as these have yet to find any traction in Olympia.

The state Attorney General’s office has recommended recording executive sessions so there is a record of exactly what was said. These recordings could not be disclosed without a court order. But the legislation hasn’t been approved, said Dan Sytman, a spokesman for the Attorney General’s office.

To help mediate disputes of a number of questions that arise over government openness, the state Attorney General proposed establishing a state Office of Open Records, he said.

The two-year cost of the state office is estimated at $134,392. In a year where the Legislature is facing multi-billion shortfalls, the bill has already been declared dead, Sytman said.

Tim Ford, the state’s open government ombudsman, said that disclosure of potential real estate purchases could indeed cause its price to increase. That’s the reason why the state has a specific exemption for such discussions to take place in private.

Governments can’t pay more than the fair market price for property, he said. Disclosure could allow private developers to outbid government agencies.

Yet not everything discussed in executive session is confidential, Ford said.

Whether disclosure of WSU’s potential partnerships in the Everett School Board deal broaches confidentiality would depend on how widely the university’s interest in opening a branch campus was known, he said.

A public official deciding unilaterally to disclose confidential information could potentially be prosecuted as a misdemeanor by city or county prosecutors, he said.

“I’m not a judge,’ he added. “It wouldn’t be appropriate for me to say someone either broke the law or they didn’t.”

Whether Olson breached confidentiality in this case could be difficult to determine, Ford said. If it was generally known that WSU wanted to open a branch campus, it’s not confidential, he said.

“The difficulty … is neither you nor I were attending the executive session,” Ford said. “We don’t know what information was discussed.”

Sharon Salyer: 425-339-3486 or salyer@heraldnet.com.

The law

•The Open Public Meetings Act can be found in Chapter 42.30 of the Revised Code of Washington.

Chapter 42.52, meanwhile, covers the authority on ethics in public service.

Chapter 42.23 governs ethics for municipal officers.

Those and other state laws can be browsed and searched at apps.leg.wa.gov/rcw/.

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