Everett School Board dust-up revives debate over recording closed-door meetings

EVERETT -- When Everett School Board member Jessica Olson turned on a video camera during an executive session Tuesday, she set in motion a chain of events that ended in a physical confrontation with two of her colleagues, and a police investigation.

Some in Everett blame Olson for the fracas by recording a closed-door meeting. Elsewhere in Washington, the idea of recording all executive sessions has powerful allies, including the state attorney general and auditor.

Olson, often the lone dissenter on the five-member board, said she wanted to create a record of what she considered an effort by the board to keep her criticisms of Superintendent Gary Cohn out of his annual performance evaluation. She said discussion of her concerns shouldn't be subject to executive session secrecy.

The state attorney general and state auditor favor changing the state law to mandate recordings so that what happens behind closed doors doesn't stray from the few exemptions allowed under state open meetings laws.

Organizations representing Washington's cities, counties and school boards oppose such a change, saying it could smother open discussions on sensitive matters.

Few boards record closed-door sessions.

"There is nothing that prohibits it; there is nothing that requires it," state auditor spokeswoman Mindy Chambers said.

A 2008 bill before the Legislature would have amended the state Open Public Meetings Act to require audio recording of executive sessions so there is a record of exactly what was said. The recordings could not be disclosed without a court order.

The bill failed, but the debate continues.

Olson, for instance, has questioned on several occasions whether the Everett School Board has discussed matters that go beyond the scope of what is allowed in executive sessions. If the earlier change in the law had passed, a judge would have been able to review executive session records to determine whether Olson's complaints had merit. The proposed legislation would have mandated release of any portions of the taped discussions that weren't exempt.

The Port of Seattle already operates under such a system. It makes audio recordings of all executive sessions and sends them once a year to outside legal counsel to verify that the topics fall within the bounds of the state's open meetings act, port spokesman Peter Graves said.

"It's for public accountability," he said.

Everett School Board President Ed Petersen said he opposes recording executive sessions if the tapes can later become public.

The state allows confidential discussions behind closed doors on a limited number of topics, such as bargaining strategies for labor contracts, litigation, evaluating qualifications of job applicants, potential real estate deals -- and employee performance evaluations. Any decisions must be voted on in open session.

"I think it's an important function that allows the workings of entities in complex situations to navigate to conclusions that are of the best interests of the public," Petersen said of keeping executive session discussions confidential.

Olson said routine recording would build more public trust.

"Without recording executive sessions, there is no way to verify if the subject of the session fell within the bounds of the law," she said. "The possibility exists that executive sessions can become a place where all the dirty work can be done."

Recording executive sessions could add costs to local government, said Brian Enslow, policy directory for the Washington State Association of Counties.

Enslow said the digital recording itself is not a major financial concern. Rather, it's the cataloging, storing and making digital files searchable that can become expensive, he said.

The larger issue, he said, is "the chilling effect" recording executive sessions could have on frank discussions over sensitive matters, he said.

That probably would be a good thing, said Toby Nixon, president of the Washington Coalition for Open Government.

"You hear them say, 'It will stifle the free flow of conversations in our meetings,'" the former state lawmaker said. "That's the point. They are (allowed only) for very specific legal purposes."

The state auditor's office has reported hundreds of open meetings violations in executive sessions over the years. It suspects the problem is underreported because there is no evidence to substantiate allegations.

"Because they aren't recorded, sometimes you just can't tell what they did," Chambers said.

David Brine, a spokesman for the Washington State School Directors Association, said there are legitimate concerns about taping closed-door meetings, particularly in matters of litigation where attorney-client privilege is involved.

"There is always a dynamic tension between transparency and protecting rights," he said.

Nixon said his group will continue to press for recording of executive sessions.



Eric Stevick: 425-339-3446, stevick@heraldnet.com.