Walla Walla City Council members face lawsuit over alleged open meetings violations

An open government advocate from Olympia is taking the Walla Walla City Council to court, alleging its members violated the Open Public Meetings Act during the city manager hiring process in 2022 and tattoo policy discussions in 2021.

Arthur West contends that council members unlawfully conducted meetings, failed to provide proper notice of meetings, failed to deliberate in public, and took action without complying with proper agenda and notice requirements on two occasions.

Sitting council members Tom Scribner, Steve Moss, Brian Casey, Rick Eskil, Ted Koehler, Suzan Nakonieczny and Gustavo Reyna are named in the suit that was filed in Walla Walla Superior Court on Feb. 22.

The lawsuit seeks a court ruling declaring the alleged violation, a fine of $500 for each council member and “any appropriate costs” for the plaintiff.

West, who follows alleged OPMA violations and files related claims across the state, requested on April 24 that a judge rule on the claim related to the city manager hiring process in 2022.

City Attorney Tim Donaldson, meanwhile, filed a motion to dismiss the case entirely on March 23.

In the filing, Donaldson argues that West had a reasonable opportunity to discover his potential OPMA claims against the City Council; he brought the claims with an unreasonable delay; and conditions have changed since the two specified incidents.

Eskil retained separate counsel for the case. His attorney, Megan Clark, moved to join the city’s response.

Eskil declined to comment at the advice of his attorney. The other council members and Donaldson did not respond to requests for comment by deadline.

A hearing is set for Monday, May 22, before Walla Walla County Superior Court Judge M. Scott Wolfram.

The claims

West claims the council members violated the Open Public Meetings Act during the city manager hiring process at a special meeting on Nov. 18, 2022, during which the council was expected to choose five finalists from a list of eight applicants for the open city manager job.

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The council met in executive session, and when its members reconvened in public, Scribner announced that the City Council felt that the qualifications of one applicant were superior to the others and believed that the result would not change if the council continued the application interview process, according to filings from West and Donaldson.

The council then unanimously approved a motion to offer employment to that candidate without further discussion.

West’s filing also alleges an OPMA violation on June 23, 2021, when the council received public requests to adopt a tattoo policy for city employees. Eskil, Casey and Reyna took office in January 2022 and weren’t part of the City Council at that time.

At the meeting, Scribner announced, without public discussion, that the position of the council was to not move forward with a tattoo policy, West’s filing said.

West claims the council members deliberated and unlawfully conducted meetings; violated the OPMA; and took action without compliance with proper agenda and notice requirements in these two instances.

The response

Donaldson, in his March 23 reply, argues that West had a reasonable opportunity to discover his potential OPMA claims against the City Council, but he brought it with an unreasonable delay and conditions have changed since the two specific incidents.

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Donaldson said West had access to livestreamed meetings and recordings and public comment where the incidents and OPMA violation allegations made by community members were discussed.

Donaldson argues that West did not raise a timely objection to the council’s action — or inaction with regards to the tattoo policy — and conditions have since changed.

He noted that Eskil, Casey and Reyna weren’t in office in 2021, and the former council members were no longer sitting on the council. He also said the city manager who was ultimately hired has performed city business since being hired.

Donaldson argued that most importantly, the City Council took steps to address each alleged incident, retracing its steps, holding public discussion and committing to additional OPMA training.

“Mr. West’s OPMA claims became moot when the Walla Walla City Council took substantial action to address the events about which he complains,” the filing said.

Donaldson requested the case be dismissed with prejudice, meaning the case could not be refiled.

West requested the court give a partial judgment for the city manager hiring process instance, arguing that it was undisputed that the City Council violated the OPMA on Nov. 18, 2022.

He also disagrees with the city’s legal argument, saying his filing was within the two-year statute of limitations.

“They haven't disputed that there was a violation on the 18th … they argue alternatively that they fixed it afterwards,” West said, “which is correct, but under established case law, that does not relieve them of the liability for having violated the act in the first place.”

West said a ruling affirming Donaldson’s argument would undermine OPMA enforcement.

“If they're allowed to win in this case, it would set a dangerous precedent that would allow agencies to violate the act with impunity, and then go back at a later date and retrace their steps,” West said.

Donaldson maintained in a later response, filed May 13, that the claim becomes moot after an alleged legal problem has been corrected because courts don't give advisory opinions.

Those arguments will be considered by the judge Monday.