Lawsuit filed challenging Council’s repeal of the head tax

Late last week, a lawsuit was filed against the City of Seattle, alleging the City Council and the Mayor violated the Open Public Meetings Act when they pushed through a repeal of the controversial head tax last Tuesday.

The lawsuit was filed by local attorney James Egan. He is no stranger to the state’s government transparency laws, having previously filed a lawsuit over SPD’s unwillingness to hand over dashcam videos from police incidents before the investigations were complete.

Egan’s latest lawsuit is largely based on Seattle Times reporting last week on potential irregularities in the internal debates as to whether to propose a repeal, and in posting a public as to the scheduling of the special meeting to hold the vote.

Let’s take the latter issue first. According to state law, City Council special meetings must be posted 24 hours in advance and advertised to media who have filed a request with the city to be notified of all such special. The vote meeting was scheduled for noon last Tuesday. According to city records, the meeting announcement was posted on the city’s web site a few minutes before noon on Monday, and the announcement was distributed via email by about 12:10. While technically this violates the Open Public Meetings Act, most likely a judge would find this to be a “de minimis” violation and dismiss the claim.

The other issue is more complicated. State law requires all meetings of the Council to be open to the public. While such a formal meeting did not occur over the weekend, the Times reported that Mayor Durkan and Council President Harrell  spoke individually to several Council members about lack of popular support for the head tax and caucusing votes for a Council repeal. Courts have found that officials don’t need to be physically present in the same location for a meeting to have taken place; a “meeting” could occur for the purposes of the OPMA if business is transacted over email, or if officials are conveying information between other officials for the purposes of transacting business. Egan claims that’s what happened here: that Durkan and Harrell carried information between Council members and in so doing held a de facto meeting in which a majority of the Council agreed to repeal the head tax.

So far, the evidence to that extent is somewhat light: a Seattle Times article, lot of hearsay, and disjoint accounts of what happened behind the scenes. The information and sources presented in the complaint filed certainly aren’t sufficient to find a violation of the Open Meetings Act. Which brings us to what this case really is: a fishing expedition. Assuming the city doesn’t convince a judge to throw it out at this early stage, Egan and his lawyers are hoping that the discovery process will provide evidence and testimony sufficient to validate their claim. Some of that information they could get from Public Records Act requests; but by filing a lawsuit they also get the right to depose witnesses, i.e. the Mayor and City Council members. That’s going to be important, because it’s unlikely that the elected officials’ texts and emails alone will give a clear indication of what transpired.

Egan also makes clear in his complaint that he is opposed to the head tax and is not challenging the legality of the repeal vote itself – though if he wins it would be a slam-dunk for someone else to file a lawsuit to invalidate the vote (however, it would also be trivial for the Council to simply redo the vote).

One side note: Egan’s lead attorney is none other than Lincoln Beauregard, who previously represented the late Delvonn Heckard in his lawsuit against former Mayor Ed Murray .

The chances of this lawsuit resulting in a finding that the Council violated the Open Meetings Act is low. It will, however, add one more blemish on the reputations of the Mayor and City Council members at a time when dissatisfaction with their performance is already growing.