Preamble to Washington State’s Open Public Meetings Act
“The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so they may maintain control over the instruments that they have created.”
RCW 42.30.010 and RCW 42.56.030
On April 22, the Point Roberts fire district commission held a special meeting in response to an Open Public Records Act request made of the district by the All Point Bulletin. The meeting was called by commissioner Shannon Tomsen who accused the newspaper of intimidation, inaccuracies and making numerous threats against her, fellow commissioners and the district itself. The OPR request is provided below; readers can judge for themselves her truthfulness.
Commissioners approved motions to have the district’s attorney rebut the so-called allegations, prohibit the expenditure of any public funds for advertising in the APB and to delay posting of meeting videos until after the APB goes to press each month. All this because of an OPR request that was motivated by the APB learning about multiple OPR requests that Tomsen had made of the hospital district.
It is safe to say that relations between the fire commission and this newspaper have not been this poor since the 1990s when the APB found out that commissioners had known about financial shenanigans at the volunteer fireman’s bingo operations and had covered it up. That bit of news led to a state gambling commission investigation and the resignation of all three sitting commissioners.
One observer at the special meeting who asked to remain nameless said, “What struck me was how off the end of the pier the whole thing was. The very idea of an official, elected committee calling a special meeting to condemn a journalist for doing his or her job is just bizarre. If you don't like the published article, write a letter to the editor.”
The special meeting was the culmination of an anti-newspaper campaign that has been waged by Tomsen ever since she was appointed to the board in April 2016. Some years before, she was involved in a campaign to force an ownership change in the local solid waste facility; her stream of vitriolic emails to the newspaper eventually resulted in her emails being blocked.
One of her major complaints against the APB is the amount of space devoted to the fire district compared to other tax districts and local groups. There’s a reason for that: the fire district has the largest tax bite of any local district, its mission involves the provision of public safety and health and it is the most active organization on the Point. When the cemetery district begins taking responsibility of our citizens before they drop dead, we’ll pay them equal attention as well.
A couple of years ago, fire commissioner Bill Meursing invited the undersigned to join him for a cup of coffee and essentially asked the newspaper to join the fire department glee club. What I explained to him, apparently unsuccessfully, was that while the newspaper was happy to provide editorial support to the fire department, it was the role of the newspaper to keep an eye on the commission to make sure they were discharging their duties in the public interest. Commissioners aren’t, after all, risking their lives and riding the shiny red trucks and ambulances to put out the fires and save the lives of local citizens; they’re there to make the decisions that make it possible for the men and women of the fire department to do their jobs to the fullest extent of their abilities.
To the extent that they have done that, commissioners Riffle and Meursing in particular are to be commended. Under Chief Carleton’s extremely capable leadership, the fire department has made huge strides in planning, training, updating equipment, obtaining grants and especially the expansion of advanced life support. Given the evolving nature of volunteer fire departments, that last accomplishment is particularly important. And that’s just a sampling of what the Chief has accomplished.
In other ways, though, commissioners Riffle and Meursing have not been up to snuff. For instance, they have been lax in examining employment contracts and once failed to even ensure the district’s attorney had looked over a proposed contract. One of their biggest failures has been to allow Tomsen to become so involved in the fire station building’s operation – this has been an unmitigated disaster. Commissioners should be setting policy, not micro-managing building issues as described in the Tempest in a Teacup article in the May issue of the APB. Her behavior and actions have led to serious morale issues at the clinic and the fire department – her reign of intimidation must be brought to a swift and decisive end.
Tomsen has announced she doesn't plan to run as a fire commissioner this November; she will run against Robin Nault for the hospital commission. She has said she has concerns about the way the hospital district is run but, curiously and consistently, she fails to say what those concerns are. Surely the voters of Point Roberts will make certain that the capable and hard-working Nault is returned to office. The citizens have another task facing them. Both Meursing’s six-year term and Tomsen’s unexpired two-year term are up for election in the fall. Who will step forward to re-vitalize the fire district commission? The deadline to file for office is May 19.
The commissioners took umbrage at the suggestion made in the newspaper’s OPR request that the dual appearance of commissioners Meursing and Tomsen at the hospital district was in violation of the Open Public Meetings Act and that Meursing and Riffle’s frequent sightings together in public demonstrate a “consistent disregard to the spirit and the letter of the Open Public Meetings Act.” The fact is, previous OPR requests made by the APB have shown email communications in violation of the OPM and telephone logs list numerous calls made to and from commissioners (excluding Tomsen). It strains credulity to believe that Riffle and Meursing spend so much time together and never discuss fire district business.
However, if commissioners want to avoid the appearance of violating the OPM Act, there is a simple solution. They can do what commissioner Riffle suggested in an email (in violation of the OPM Act) to commissioners Meursing and David Gellatly early in his tenure – expand the board to a five-member commission. Too bad Riffle had come around to the opposite position by the time Jeff Wilmot joined the board and suggested it. (Meursing pooh-poohed it, saying five people talking was two people too many talking too much.)
The actions taken by the commissioners at the special meeting only hurt the public and diminish its respect for the fire commissioners individually and collectively. They will not hurt the All Point Bulletin or deter it from its public duty to keep a watchful eye on those the voters elect to do their business.
Below, readers will find the APB’s original OPR request, a follow-up request, the district attorney’s letter to the APB following the special meeting and the APB’s response to that letter. The district has promised a response to the first OPR request by May 12; note that a virtually identical OPR request made to the hospital district on April 19 was fulfilled on April 23.
The newspaper will report on whatever findings come out from the OPRs submitted to the district.
Patrick Grubb, Publisher
APB OPR Request – April 19, 2017
Dear Sirs,
On April 5, 2017, fire commissioners Bill Meursing and Shannon Tomsen attended the Point Roberts Hospital District’s regular monthly board meeting at the community center. As you know, the hospital district rents space from the fire district for its health clinic. Although both commissioners stated they were there as private citizens, they were conducting fire district business while they were in attendance.
Two members of a three-member board meeting outside of a regular or special meeting means a quorum of the board is attained and is considered an illegal meeting under the Washington State Open Public Meetings Act. I would note that commissioners Meursing and Stan Riffle are frequently seen together in public and have shown consistent disregard to the spirit and the letter of the Open Public Meetings Act; the meeting referenced above shows that commissioner Tomsen shares the two other commissioners' disdain for the public and its right to open government. Earlier Open Public Records Act requests made by this newspaper illustrated this has been an on-going problem.
The hospital district has requested permission from the fire district to erect new signage on the district’s Benson Road property. This issue has been a subject of discussion at the fire district’s board meetings since January 2016. At the April 5 hospital board meeting, both commissioner Tomsen and commissioner Meursing engaged in a lengthy and contentious discussion with hospital district commissioners and staff about the sign issue. While doing so, they telegraphed each other’s position and essentially engaged in a “final action” contrary to the OPM act. By even discussing the issue, they were engaging in “action,” which is prohibited outside regular, special or executive meetings. Officials who knowingly attend a meeting in violation of the OPM act may be fined $100 for doing so.
For example, referring to a sign proposal that she had sent the hospital district, commissioner Tomsen told the hospital board that she intended to withdraw it. Commissioner Meursing followed her remarks with the statement, "I am speaking as a private citizen and I have to be careful. I suggest you write a letter to the district that you've tabled the issue and the fire commission will table it also.” He then asked for a current copy of the hospital district’s contract with its healthcare provider, UnityCare. At one point, unbelievably, Tomsen said, “I would say more except he’s sitting there,” pointing to the All Point Bulletin reporter.
Now commissioners Meursing and Tomsen can say they are attending a meeting as private citizens, they can even say they are attending as blue-footed boobies,* but the second they attain a quorum and the second they start discussing fire district business, they are acting as fire commissioners. This is a flagrant violation of the Open Public Meetings Act. We intend to take up this violation with the Office of the State Auditor.
Furthermore, commissioner Tomsen has been emailing hospital district administrator Elaine Komusi on this and other issues. She has also had communication with the office of the state attorney general regarding the hospital district’s response to her public disclosure requests. Again, commissioner Tomsen can say her communications were as a private citizen or a blue-footed booby but she is merely being duplicitous – she was acting in her capacity as a fire district commissioner and conducting fire district business. As such, any emails sent from personal or fire district accounts involving fire district business become subject to open public records requests.
Accordingly, pursuant to the state open records law, RCW Section 42.17.010 to 42.17.350, I write to request access to all emails, letters or other communications sent or received by fire district commissioners and fire district staff and other parties that reference the hospital district since January 1, 2016 to the April 18, 2017. This request shall encompass any communication regarding the hospital district with parties other than the fire district or hospital district, such as the attorney general’s office, for example. This request specifically includes communications between commissioners.
Additionally, I am requesting access to any application, resume or other information provided to the fire district by commissioner Tomsen when she applied for her appointment to the commission. I would also like access to any evidence that commissioner Tomsen has fulfilled the state law requiring that officials undergo training on open public meetings.
As provided by law, I will expect your response within five business days. I will accept electronic copies of all material relevant to my request. I agree to pay any reasonable copying and postage fees of not more than $25; if the cost would be greater than this amount, please notify me.
If you choose to deny this request, please provide a written explanation for the denial including a reference to the specific statutory exemption(s) upon which you rely. Also, provide all segregable portions of otherwise exempt material.
Please be advised that I am prepared to pursue whatever legal remedy necessary to obtain access to the requested records. I would note that violation of the OPR act can result in a fine of up to $100 for each day that I am denied access. Litigation costs, including reasonable attorney fees, may also be awarded.
Thank you for your assistance.
Sincerely,
Patrick J. Grubb
Publisher
* In the original request, there was a typo. The first instance of the word boobie was inadvertently spelled bootie.
Second OPR Request – May 3, 2017
Whatcom County Fire District #5:
Pursuant to the state open records law, RCW Section 42.17.010 to 42.17.350, I write to request access to:
2. Commissioner Tomsen read from a prepared document during both her opening and closing statements. Please provide copies of any and all documents that were created or used during the special meeting. As well, please provide a copy of the video recording of the meeting.
3. Since her appointment as commissioner in April 2016, Tomsen has made a number of presentations to fellow commissioners, staff and the public regarding the All Point Bulletin, its editorial coverage and newspaper personnel including Pat Grubb, Meg Olson, Louise Mugar and other Point Roberts Press, Inc. staff. Please provide copies of all documents that reference the All Point Bulletin, its editorial coverage and newspaper personnel including Pat Grubb, Meg Olson, Louise Mugar and others dating from April 1, 2016 to today’s date. These would include, but not be limited to, reports, emails, texts, spreadsheets, presentation materials, and photos.
4. Please provide copies of all communications between commissioners, and between commissioners and staff, that reference the All Point Bulletin, its editorial coverage and newspaper personnel including Pat Grubb, Meg Olson, Louise Mugar and other Point Roberts Press, Inc. staff.
It is not necessary to provide communications between the All Point Bulletin/Point Roberts Press, Inc. and fire district staff. For example, communications regarding advertisements, public notices and such need not be included.
As provided by law, I will expect your response within five business days. I will accept electronic copies of all material relevant to my request. I agree to pay any reasonable copying and postage fees of not more than $25; if the cost would be greater than this amount, please notify me. Should you require a SD card/flash drive for the video I will be happy to supply same.
If you choose to deny this request, please provide a written explanation for the denial including a reference to the specific statutory exemption(s) upon which you rely. Also, provide all segregable portions of otherwise exempt material.
Please be advised that I am prepared to pursue whatever legal remedy necessary to obtain access to the requested records. I would note that violation of the OPR act can result in a fine of up to $100 for each day that I am denied access. Litigation costs, including reasonable attorney fees, may also be awarded.
Thank you for your assistance.
Sincerely,
Patrick J. Grubb
Publisher
S NUR E L AW O FFI C E
A P r o f e s s i o n a l S e r v i c e s C o r p o r a t i o n
Cl a r k B. S n u r e
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1930 - 2014
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April 25, 2017
Re: April 19, 2017 Open Public Meeting Act Allegations
Dear Mr. Grubb:
As you are aware, I serve as general counsel to Whatcom County Fire Protection District No. 5. My client has requested that I clarify the record and respond to the erroneous allegations contained in your April 19, 2017 email regarding the commissioner’s compliance with the Open Public Meetings Act “OPMA.”
In your email, you allege that the presence of commissioners Meursing and Tomsen at a Point Roberts Hospital District’s regular meeting constituted a violation of the OIPMA [sic] because both commissioners made comments to the Hospital District Board on an issue. You claim this was a “discussion” and that the commissioners “telegraphed” their positions and therefore engaged in “final action.” You also claim that commissioners Meursing and Riffle are disregarding the OPMA because they are “frequently seen together in public.” What is absent from your conclusory and inflammatory allegations are any facts that support your position.
RCW 42.30.070 expressly recognizes that a quorum of a legislative body may “gather for purposes other than a regular meeting or special meeting” provided that official business is not transacted. This provision has been interpreted by the State Attorney General to specifically allow a quorum of a legislative body to “attend a public meeting called by a third party.” (AGO 2006 No. 6). Similarly, the Municipal Research and Services Center (MRSC), a widely-respected authority on municipal law and the OPMA has advised that RCW 42.30.070 expressly exempts “social gatherings” from the OPMA.1 Accordingly, consistent with RCW 42.30.070, a quorum of fire district commissioners have legal authority to gather socially or attend other public meetings or community functions as long as the members do not engage in action or final action as that term is defined under the OPMA.
The Open Public Meetings Act defines the terms action and final action in RCW 42.30.020(3) as follows:
612 South 227th Street ¨ Des Moines, Washington 98198 ¨ Telephone 206-824-5630 ¨ Fax 206-824-9096
“Action” means the transaction of the official business of a public agency by a governing body including but not limited to receipt of public testimony, deliberations, discussions, considerations, reviews, evaluations, and final actions. "Final action" means a collective positive or negative decision, or an actual vote by a majority of the members of a governing body when sitting as a body or entity, upon a motion, proposal, resolution, order, or ordinance.
Your email alleges no facts that support or even suggest that commissioner Meursing and Riffle have engaged in action outside of an open public meeting. Commissioners Meursing and Riffle have the right to socialize in public or in private at any time they wish and such socializing is not only expressly authorized by the OPMA but is consistent with the spirit and letter of the OPMA and their rights as citizens. Absent any facts to support your opinions, we request that your refrain from disparaging the reputations of Mr. Meursing and Mr. Riffle and they will continue to socialize with each other in the future as they see fit.
Your email also fails to identify that Commissioner Meursing or Commissioner Tomsen engaged in any action or final action at the Point Roberts Hospital District meeting. I note, for the record, that commissioner Meursing contacted me prior to attending this meeting to confirm that he could attend provided he did not engage in any discussions with Commissioner Tomsen.
While each commissioner may have made comments to the Hospital District Board on matters relating to the fire district, Mr. Meursing made clear that he was speaking as a private citizen and not as an official spokesperson of the District. In fact, Mr. Meursing was not authorized by the Board to speak on its behalf so he had no legal authority to take a position on behalf of the Board. As elected officials do not sacrifice their first amendment rights when elected to office, Mr. Meursing has a legal right to make such comments and the simple fact that he is a commissioner does not transform his personal opinions into the transaction of the official business of the District.
Even if commissioner Meursing had been speaking on behalf of the District, to my knowledge, and based on your email, it does not appear that either commissioner Meursing or Tomsen engaged each other in any discussions. For action to occur under the OPMA discussions must occur “between a majority of the members” of a governing body. Matter of Recall of Beasley,
128 Wn.2d 419, 426 (1996) (emphasis added). Absent any discussion between commissioners
Meursing and Tomsen, no action of the Board of Commissioners occurred. To suggest otherwise would prohibit commissioners from stating their opinions or position in any public forum whether it be a Hospital District Board meeting or a letter to the editor.
Finally, your claim that the commissioners somehow “telegraphed” their positions resulting in final action is equally misguided. First, it is unclear what you mean by “telegraphed,” second, absent any actual collective communication between the commissioners to make a collective decision, it would be impossible, under the Open Public Meetings Act, for a final action to occur.
We request that you refrain from making any further unfounded accusations against the commissioners of Whatcom County Fire Protection District 5.
Very Truly Yours,
SNURE LAW OFFICE, PSC
cc: Client via email
WM5LT4_25_17OPMA
Brian K. Snure
APB response to Snure’s Letter:
Dear Mr. Snure,
I have received and read your letter of April 25, 2017. I understand it was prompted by a motion passed by Fire District #5 commissioners at a special meeting held Monday, April 24 which I attended.
I found your interpretation of what constitutes a “discussion" and “action” interesting. Incorrect but still interesting. I am willing to disagree on what constitutes “final action” because it is moot in the context of my newspaper’s OPR request to the fire department.
I am surprised that you made the recommendation regarding Meursing’s attendance at the hospital district meeting; it seems to me the wisest course of action would have been to recommend that the fire district issue a public notice that the two commissioners would be in attendance but no official business would take place. This is typically what other public agencies do in cases such as this in my experience.
As for “unfounded allegations,” earlier OPR requests made by this newspaper and fulfilled by the fire department have shown fire district discussions taking place between Meursing and Riffle using private email – these are facts, not allegations.
I make these points in affirmation of my original OPR request as I do not believe you should rely upon your interpretation when it comes to fulfilling our request; specifically, any private communication between commissioners dealing with hospital district matters that constitute fire district business is subject to disclosure.
Regarding allegations, commissioner Tomsen made extremely disturbing comments about myself and the newspaper during the special meeting mentioned above. To wit, she said that the OPR request made by the All Point Bulletin contained personal threats against her and was an attempt to intimidate her. These comments have placed her, her fellow commissioners and the district in jeopardy. I suggest you direct your recommendations regarding allegations in a different direction.
I note that a virtually similar OPR request made of the hospital district has already been fulfilled. I look forward to receiving the fire district’s response according to the schedule you have previously given.
Sincerely,
Patrick J. Grubb
Publisher
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