PORT ANGELES — Former Clallam County Deputy Prosecuting Attorney Shirley Nixon cites two Supreme Court cases to bolster her contention that the city acted illegally by selecting Kent Myers as the new city manager in a Dec. 9 executive session.

Only activities “explicitly specified” under state law as being allowed in executive sessions can occur in executive sessions, according to a landmark 1999 state Supreme Court case, Miller v. City of Tacoma.

The court ruled that the Tacoma City Council violated the state Open Meetings Act by choosing a candidate by secret ballot for the planning commission because the selection took place in an executive session.

The meeting was held under the same open-meeting exception for candidate evaluations the Port Angeles City Council used to select Myers: “to evaluate the qualifications of an applicant for public employment . . . “

The Supreme Court nullified the planning commission appointment because the City Council did more than evaluate.

“It is clear the council could discuss and consider the worth, quality and significance of the applicants’ qualifications, and individual council members could express their opinions on such matters, but they could not choose a candidate,” the court said.

“Balloting in an executive session to arrive at a consensus candidate for public employment” is not allowed in executive sessions, the court said. “Balloting is not an evaluation.”

Action must be public

In addition, the court said, “all ‘action’ must be taken in an open meeting.”

Miller was the foundation for a second case in 2003, Feature Realty v. Spokane.

The court ruled the Spokane City Council violated the open-meetings law by reaching a consensus in executive session on the terms of a land-use settlement and by directing its attorney, in that same executive session, to finalize the agreement.

The agreement was nullified.

Port Angeles City Attorney Bill Bloor said he was prohibited by Section 3 of the city’s Rules of Procedure from discussing what occurred in the Dec. 9 executive session.

“What didn’t happen was a violation of the rules described in Miller,” he said.

But Nixon suggested that the City Council’s conduct was egregious in broad terms beyond a violation of the law.

In a prepared statement at Tuesday’s City Council meeting, she referred to the recent creation of the Harbor-Works Public Development Authority to clean up the Rayonier pulp mill site as an example of the City Council overusing executive sessions.

“Unfortunately, the City Council appears to have once again run afoul of the Open Government Principles by selecting its preferred candidate for a new City Manager in a completely closed process,” she said.

“I don’t know how or if this violation of the Open Public Meetings Act can be corrected, but I am truly sorry that the arrival of a new city manager — a hopefully bright occasion filled with great promise for the city’s future ¬­– must be clouded by the Council’s disrespect for state law.”

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Staff writer Paul Gottlieb can be reached at 360-417-3536 or at paul.gottlieb@peninsuladailynews.com.