By John Gillie, September 24, 2014, The News Tribune
A Seattle attorney whose practice focuses on open government says a series of secret meetings between the port commissions of Tacoma and Seattle may violate state law.
Those eight confidential sessions, which began this spring and include one Wednesday morning at Seattle-Tacoma International Airport, are part of an effort by the two ports to improve their stance in the face of fresh competition from Canadian and Mexican ports, an enlarged Panama Canal and aggressive East Coast ports working to gain new business at their expense.
The two ports, while announcing the joint sessions publicly, have held them all behind closed doors, citing federal law their attorneys say trumps the state Open Public Meetings Act, which requires the commissions to meet in public with limited exceptions. Those exceptions involve such issues as pending litigation, real-estate transactions, national-security matters and personnel issues.
Michele Earl-Hubbard, a Seattle attorney with 17 years of experience in open-government law, says the ports and their legal counsel are “simply wrong.”
Earl-Hubbard said port commissioners face the possibility of a citizen lawsuit alleging violation of the state open-meetings statute, personal fines and invalidation of any agreements they made during the meetings.
“Most importantly,” said the attorney, “they risk the loss of public confidence in their deliberations because they held confidential sessions about public business.”
Kathy Best, editor of The Seattle Times, said, “It appears as though the ports went looking for a loophole and found one they think will justify meeting in private. Totally secret meetings by elected officials are an affront to the public and undermine trust in government.”
The News Tribune hired Earl-Hubbard to review the issue after one of its reporters was refused entry into a joint port meeting Sept. 10 at Sea-Tac Airport.
Attorneys Carolyn Lake and Tom Tanaka, representing the ports of Tacoma and Seattle, respectively, argue that federal law and regulations governing the Federal Maritime Commission allow the two ports to hold joint executive sessions to discuss their business matters. The two ports sought and received Federal Maritime Commission (FMC) permission to meet together and to share information about their port operations.
They say that federal law prevails when it conflicts with state law.
“Congress has impliedly pre-empted state law regarding disclosure by stating that information, meeting minutes and documents of these foreign-commerce records filed with the Federal Maritime Commission ‘may not be made public,’ ” the ports’ attorneys said in a joint statement.
The two ports “are exchanging information that is pretty sensitive — it goes to their strategies, their capabilities, capacities, those types of things,” said Tanaka, the Port of Seattle’s attorney. “If those were to get out to ports in other parts of North America, that could be very damaging to the market position of both Seattle and Tacoma.”
However, Earl-Hubbard said the federal rules apply only to requests for Federal Maritime Commission documents under federal freedom-of-information statutes. They don’t pre-empt state laws regarding open meetings.
The federal government pre-emption, said the attorney, applies to antitrust matters, not to open meetings and public disclosure.
“Federal law can’t be cited as an excuse for ignoring state open-meetings law,” she said.
Tacoma Port Commission President Clare Petrich said the ports believe the confidential meetings were necessary to allow them to share private financial and operating information that might allow competitors or potential customers a negotiating advantage if publicly disclosed.
Efforts to reach Seattle Port Commission officers were unsuccessful Tuesday.
At least two public meetings are in the planning stages to reveal the results of studies about the importance of the ports’ business to the community, Petrich said.
No agreements have yet been reached between the two commissions regarding how best to alter their business plans to make them more competitive, she said.
According to the ports’ attorneys, the commissions “are not allowed to, and don’t, take any action in the discussion agreement meetings that occur.”
The two ports ruled out a merger between the two when they announced the joint talks in January.