By Aaron Corvin, July 30, 2013, The Columbian
Facing the opportunity to land the biggest oil terminal in the Pacific Northwest, the Port of Vancouver wanted to manage a highly lucrative lease deal with Tesoro Corp. and Savage Companies as smoothly as possible. The port settled into exclusive negotiations with the companies and moved the controversial project through public meetings.
That’s when port commission President Jerry Oliver told a hearing room overflowing with opponents of the controversial oil-by-rail plan that he, Commissioner Nancy Baker and Commissioner Brian Wolfe would discuss their public testimony in private — an apparent violation of Washington state’s open public meetings law, according to experts.
Oliver said Tuesday “I misspoke” and that fatigue contributed to his misstatement. He said he should have cited “real estate” as the reason for excluding the public and meeting in an executive session. “In fact, we did discuss the lease as it pertained to real estate,” he said. Oliver declined to say specifically what was discussed.
By the time commissioners met on July 22, it was publicly known how much the lease was worth to the port and how many acres it involved: $45 million over the first 10 years and 42 acres. And Oliver twice told people who’d jammed the hearing room to testify, mostly in opposition to the deal, that commissioners would meet in executive session to discuss what people told them “and how that impacts our deliberations.”
What’s more, the only real estate issue commissioners were allowed to discuss in private is related strictly to price, according to Tim Ford, open government ombudsman for the state Attorney General’s Office. Executive sessions are exemptions to open public meetings law and allowed only for specific and narrow purposes, Ford said. They’re not to be used for discussing public testimony.
Port commissioners should “do a redo,” Ford said. “Go back into a public meeting to discuss what was discussed in executive session. They should do that.”
He added, “The public has the right to witness the deliberations of the port commission.”
‘A minimum of 15 minutes’
Commissioners unanimously approved the lease on July 23, despite overwhelming public testimony against it. That testimony included concerns about public safety and environmental harm, and that the port wasn’t giving enough time to hear people out. Tesoro and Savage want to handle as much as 380,000 barrels of crude per day, hauled by train from the Bakken site in North Dakota.
It’s unclear what impact the commissioners’ questionable use of executive session will have on the oil terminal project. Michele Earl-Hubbard, founding board member of the Washington Coalition for Open Government and a widely recognized expert on the state’s public meetings law, said it’s not unusual for people who believe a violation of open public meetings law has occurred to challenge it in court. Likewise, a person may report it to the state Auditor’s Office, Earl-Hubbard said, which investigates compliance with the law as part of its audits of state and local agencies. Given how the port commissioners handled the executive session, Earl-Hubbard, principal of Seattle-based Allied Law Group, said she hopes someone files a complaint with the Auditor’s Office.
The purpose of the July 22 executive session isn’t the only concern.
There’s also an issue of how the commission incorporated the executive session into its public meeting.
The state open public meetings law requires elected officials, before they head into an executive session, to tell the public how long the private meeting will last. That requirement imposes accountability on an elected body, Earl-Hubbard said.
On that issue, commissioners again ran afoul of state public meetings law.
Addressing people before taking their testimony on July 22, Oliver said “this board will recess into executive session for a minimum of 15 minutes to discuss what we’ve heard here this evening and how that impacts our deliberations.” He said it again, shortly before commissioners met in executive session: The meeting “is concluded,” Oliver said. “We’re now going to recess into executive session for a minimum 15 minutes … we’ll review your comments and discuss them.”
Earl-Hubbard said commissioners were required to tell the public precisely how long they would meet in executive session. “You’re not allowed to say ‘for a minimum of 15 minutes,'” she said.
Ford agreed, saying the public is “entitled to be there when they adjourn back into a public meeting.”
And that’s yet another problem with the way commissioners handled the July 22 executive session: They ended what began as an open public meeting with an executive session, which is not allowed under the state’s open public meetings law, according to Ford. Instead, commissioners were required to tell the public when the executive session would end and then reconvene in an open session afterward.
“It is an accountability issue,” he said.
Added Earl-Hubbard: “You don’t shut down in secret. You shut down in public, and you tell people how long you’ll be so people can come back for the public part.”
Commissioner Oliver said he relied on the port’s legal counsel, Lisa Lowe — an attorney with the Vancouver offices of Schwabe, Williamson & Wyatt — “who indicated that we needed to have at least a 15 minute executive session but that it could be open-ended. In fact, I think it ran close to 30 minutes.”
“Whether it would have been more appropriate to come back to the meeting room,” Oliver said, and go into open session before ending the meeting, “again, I relied on counsel.”
Reached by phone Tuesday, Lowe declined to comment on the concerns surrounding the port’s use of executive session. She said it was “inappropriate” for The Columbian to ask her about it, noting she’s the port’s attorney. “I’m about to hang up on you,” Lowe said, which she did.
Oliver said he does “everything I can to adhere to proper procedure.” He said he’s conducted many meetings where he gives the proper citations for meeting in executive session. “That’s not to say I’m perfect,” he said. “I err probably more frequently than I would care to admit.” As to the July 22 meeting, he said: “I used my best judgment.”
Commissioner Brian Wolfe declined Tuesday to comment on the matter in detail. “I think what we were trying to discuss is the lease and how the lease and the real property valuations … were affected by the comments, which we were led to believe was executive session material,” Wolfe said.
Wolfe said he didn’t want to make any comments “that put my president (Oliver) or my legal counsel (Lowe) at odds.”
Commissioner Nancy Baker said that Lowe is “very good at advising us” and that “if there’s anybody in the group that follows the rules, it’s me.”
She said the oil terminal is “probably the most complicated and difficult” thing she’s grappled with in her time with the port. Port officials have “all been under terrible stress” over the issue, she said. “If we didn’t follow the rules, then we need to be cognizant of that,” Baker said, “and we need to make sure” that it doesn’t happen again.
Ford, the open government ombudsman for the Attorney General’s Office, said Lowe, who was present during the July 22 meeting, “should have jumped in” to make sure the commissioners were meeting requirements under open public meetings law.
Theresa Wagner, communications manager for the port, said the port normally makes the proper citations, including for real estate, personnel and litigation matters, before entering into executive sessions. “Our intent is to always be as transparent and open as possible,” she said.
The executive session commissioners convened on July 22 was to discuss real estate issues, Wagner said. Commissioner Oliver “did what he thought he was supposed to do,” she said. As to why Oliver twice said commissioners would meet privately to discuss public testimony, Wagner said: “I honestly don’t know why” the proper citation wasn’t given. “The intent was there.”
As to the fact that commissioners failed to tell the public when the executive session would end, Wagner said: “We would do it differently next time. Next time, we would put an end time to it.”
Wagner emphasized that on the next day, July 23, port commissioners discussed the oil terminal lease in public and took their votes in public. They did so after taking additional public testimony. She said the port strived to involve the public in the oil terminal decision, inviting the public to comment in various ways over a 10-week period that included five public workshops.
Yet Brett VandenHeuvel, executive director of Columbia Riverkeeper, which opposes the oil terminal, said the lease “seemed like a done deal and listening to citizens was a formality.”
Although the port changed the July 22 meeting to an evening gathering to make it more convenient for people to attend, VandenHeuvel said, commissioners decided on the lease the next morning.
As to the concerns surrounding the port’s use of executive session that night, VandenHeuvel said: “Public meeting laws exist for a reason, so that behind-the-scenes deals can’t be made outside of the public eye.”
Earl-Hubbard echoed that sentiment.
“If you can’t have your discussions in the public light of day,” Earl-Hubbard added, “you don’t belong in public service.”