AG’s Office concerned about board actions at Chelan Fire 7

Ombudsman raises red flag on three fronts

By Les Bowen for Lake Chelan Mirror   |   Feb. 25, 2009   |   Original source

Chelan Fire District No. 7 commissioners came under more fire this week when the Washington Attorney General’s office released a letter citing three concerns relating to compliance with the Open Public Meetings Act and Public Records Act.

The letter was prompted by information sent to the AG’s office by firefighter Richard Vincent.

“I received several questions and concerns from Rich Vincent regarding the actions, e-mail communications and executive sessions of the Chelan County Fire District No. 7 Board of Commissioners,” wrote Timothy Ford, open government ombudsman for the AG’s Office.

Vincent had sent several documents he had received through public records requests along with a series of e-mail obtained by the Lake Chelan Mirror in a separate records request. Though Vincent used records obtained by the Mirror and the ombudsman commented on those records and included them in his response, the Mirror has not had any contact with the AG’s Office.

Based on the documents Ford received, he identified three areas of concern:

• The board’s discussion of official business using what the ombudsman called “serial e-mail meetings”;
• The board’s letter of Jan. 7 to Chief Dennis Ashmore which Ford said “is evidence of an unauthorized final action in executive session”; and
• Because the board members use personal e-mail addresses rather than the district e-mail server, Ford noted that commissioners may not be retaining and disclosing public records.

Vincent said he is both pleased and dismayed at the response from the AG’s Office.

“I was looking for someone to hold them accountable,” explained the firefighter. He said that the response from a state agency will give teeth to his concerns about the board, but the recommendation from the ombudsman is just that – a recommendation.

“My formal recommendations as the Attorney General’s open government ombudsman are not binding on the board and I do not exercise enforcement authority over agencies for alleged violations of the Open Public Meetings Act and Public Records Act. I make no conclusions of state law regarding the board’s compliance with state laws,” wrote Ford in the letter’s conclusion, adding that the letter was offered as a technical assistance.

Ford recommended that the fire board establish a training policy requiring board members and select staff to receive annual training on the open government laws and recommended utilizing resources such as the Association of Washington Cities or Municipal Research & Services Corporation, two agencies that provide training to government officials.

In noting the areas of concern, the ombudsman cited case law which found that e-mail exchanged between commissioners could constitute an illegal meeting. Ford explained that all “actions” of an agency must occur in an open public meeting. The definition of action in state code is broadly defined including but not limited to “receipt of public testimony, deliberations, discussions, considerations, reviews, evaluations and final actions.”

In his letter Ford explained, “Some of the emails that I reviewed were inappropriate because they were communications from one board member to all other board members for the purposes of considering official business that should have been scheduled for discussion in a public meeting or executive session.”

Referring to e-mails requested in by the Lake Chelan Mirror and sent to the AG’s Office by Vincent that, “These e-mails are easily construed as deliberations or considerations of the entire board.”

On the subject of the executive sessions regarding Ashmore’s employment, Ford explained that the board was authorized to conduct a performance review in an executive session.

However, the ombudsman indicated that the final actions from that executive session needed to take place in a public meetings.

“In this instance, it is clear that the board collectively decided on a proposal to Chief Ashmore that was presented in executive session,” wrote Ford. “The proposal requested the chief’s resignation with the alternative of being terminated. While the letter invited the chief to respond to the concerns of the Board, the phrasing of the invitation only reinforces the perception that the board made a decision regarding the chief’s employment status.”

While Ford cited concerns with the way the board conducted the executive session, he advised that the board not reverse its actions.

“Even where an agency is found by a court to have violated the law, undoing unauthorized actions may be analogous to un-ringing a bell,” wrote Ford. “My understanding is that based on the board’s letter, the chief did offer his resignation after the Jan. 7 executive session. Therefore, the metaphorical bell has been rung.”

But citing his concerns, the ombudsman recommended fire commissioners “reveal the full details of their discussion from that executive session in a regular public meeting.”

That recommendation stares in the face of the board’s position that they are not allowed to disclose what happened in an executive session.

Regarding executive sessions generally, Ford suggested the board consider conducting more of its business in public, rather than retiring to closed-door sessions.

“For its future meetings, I would further point out that while the board is authorized to meet in executive session to review an employee’s performance, it is not required by law,” explained Ford. “The board may choose to do such reviews in an open public meeting. This option would mitigate any damaging public perceptions of unauthorized executive sessions.”

On the final point of using personal e-mail accounts, the ombudsman suggested all district business be conducted using the fire district’s e-mail server.

“Where elected officials use personal email accounts to conduct official business, an agency is unable to control its public records, and is essentially dependent on the elected official to ensure compliance with state retention and disclosure laws,” he explained. “While the emails I reviewed do not indicate any evidence that public records were unlawfully destroyed, the wisest future policy is to allow the fire district staff to control its public records.”

The Lake Chelan Mirror attempted to contact all three fire commissioners for comment on the ombudsman’s letter.

“I welcome the ombudsman’s recommendations,” stated Commisisoner Jim Malvey in an e-mail to the Mirror on Thursday morning. “We will analyze, study and consult on his suggestions and remediate any shortcomings found in our review.”

Commissioner Robert Torgerson said Wednesday afternoon that he hadn’t had a chance to review the letter and was therefore unable to comment.

At the time this updated article was posted to the Web, Commissioner Dan Wright had not made any formal comment, but indicated the commission may be releasing a statement in coming days.