In re the Recall of Lakewood City Council Members , 144 Wash. 2d 583 ( 2001 )

Chambers, J.

— Pro se petitioners Robert V. Zemmers, John Arbeeny, David G. Anderson, Ron Cronk, Lisa L. Shanahan, and Todd Smith appeal from a judgment dismissing their recall petitions against the members of the Lakewood City Council. We affirm.

Appellants alleged that respondents violated the Open Public Meetings Act, chapter 42.30 RCW, by meeting in closed session on December 13,1999 to discuss with the city manager and city attorney a lawsuit challenging the constitutionality of Initiative 695, or, in the alternative, asking the courts to authoritatively construe the voter approval requirements of the initiative. Lakewood joined only to the latter portion of the lawsuit.

At the hearing to determine the sufficiency of the charges, the superior court heard testimony from the petitioners and examined declarations from council members, the city attorney, and the city manager. Based on this evidence, the court determined that the petition was factually and legally insufficient as the petitioners had failed to establish the council members had violated the Open Public Meetings Act.

This Court reviews recall petitions using the same criteria as the superior court. In re Recall of Shipman, 125 Wn.2d 683, 684, 886 P.2d 1127 (1995). The fundamental requirement is that the charges be both factually and legally sufficient. Id. “To be legally sufficient, the petition must state with specificity substantial conduct clearly amounting to misfeasance, malfeasance or violation of the oath of office.” Chandler v. Otto, 103 Wn.2d 268, 274, 693 P.2d 71 (1984).

A discussion with counsel about litigation is not on its face substantial conduct amounting to misfeasance, malfeasance, or violation of the oath of office. Arguably, a violation of the Open Public Meetings Act would be. However, this Court finds no violation. Under the statute, the attorney/ client privilege exception is available when the relevant agency (1) discusses with counsel (2) actual or potential litigation (3) where public knowledge of the discussion is likely to cause adverse legal or financial consequence. See former RCW 42.30.110(1)(i) (1989).

Elements (1) and (2) are not disputed, only element (3) where adverse consequences were likely. Petitioners argue that since the council joined only the portion of the Initiative 695 lawsuit seeking clarification, no adverse consequences were likely, and therefore this exception is not available.

The Legislature sought to balance the public policy against secrecy and governmental affairs and the attorney/ client privilege. In our jurisprudence, the attorney/client privilege has its foundation in the United States Constitution. Its constitutional foundation is found in the Fifth Amendment privilege against self-incrimination, the Sixth Amendment right to counsel and the due process clause of the Fourteenth Amendment. These rights can be protected only if there is candor and free and open discussion between client and counsel.

Adopting petitioners’ reading of the statute would require us to find the legislature intended to put public officials in the untenable position of determining beforehand whether the disclosure of discussion with counsel is or is not likely to cause adverse legal consequence. This hypertechnical reading of former RCW 42.30.110(1)(i) would effectively require elected officials to determine before discussing with counsel whether the discussion fell within the attorney/client safe harbor provision of the Open Public Meetings Act. A more sustainable interpretation of (3) is that the attorney/client privilege is not available when from an objective standard an agency should know beforehand that the discussion is benign and will not likely result in adverse consequences. A candid discussion with counsel of the legal risk and consequences of potential litigation is specifically contemplated by former RCW 42.30.110(1)(i). No such knowledge has been alleged. Therefore, we hold this discussion fell within the attorney/client privilege exception and the council members were not in violation of the Open Public Meetings Act for meeting in executive session.

Petitioners argue further that the council members “voted” in executive session when they did not block the city manager’s decision to join the Initiative 695 lawsuit. Votes must be taken in public. RCW 42.30.060. However, the trial court clearly concluded no vote was taken. Verbatim Report of Proceedings at 69. We will affirm the trial court’s factual conclusions so long as substantial evidence exists supporting the trial court’s conclusions. Miller v. City of Tacoma, 138 Wn.2d 318, 323, 979 P.2d 429 (1999). We note the city manager had the authority and the discretionary spending power to join the lawsuit. Lakewood City Resolution No. 1999-39. The city manager asked the council to go into executive session to discuss his decision to join the lawsuit, and to give the council members an opportunity to discuss with counsel the advantages, disadvantages, and risks of various courses of action. Substantial evidence supported the trial judge’s conclusion that the Lakewood City Council did not vote as the term is used in the Open Public Meetings Act. In light of the substantial evidence supporting the trial court’s conclusion that the council members’ conduct fell within the exception for attorney/client discussion and the implicit finding that no vote was taken, we find the council members took no prohibited action in executive session. See, e.g., Miller, 138 Wn.2d at 332 (Madsen, J., concurring in part, dissenting in part).

We find the petition is legally insufficient. The meeting fell within the attorney/client privilege exception to the Open Public Meetings Act, former RCW 42.30.110(1)(i). This conversation was with counsel about actual litigation. Adverse consequence could have flowed from public knowledge of the preliminary discussions with counsel. We therefore affirm the trial judge’s dismissal of the recall petition.

Affirmed.

Smith, Johnson, Ireland, Bridge, and Owens, JJ., concur.