She doesnt think holding a virtual meeting about the legislation will violate the OPMA.
She doesn't think holding a virtual meeting about the legislation will violate the Governor's proclamation, which is set to expire at the end of the month. City of Seattle

At the Seattle City Council briefing on Monday, Council President M. Lorena González reminded committee chairs of their authority to continue holding meetings on whatever bills they'd like, so long as they were comfortable assuming "the risk associated with knowingly and intentionally violating the Open Public Meetings Act (OPMA)" and needing to tap taxpayer funds to fight "a myriad and a flood" of "inevitable" lawsuits.

Councilmember Kshama Sawant has taken González up on that dare, though she doesn't think she'd be violating the OPMA in doing so.

During a press conference Friday morning, Sawant announced her intention to discuss the Tax Amazon legislation in a virtual meeting of her own Sustainability and Renters' Rights committee on Thursday, May 21.

Over the phone, Sawant said she's not proposing to hold a vote on the bill in committee. She just wants to continue the conversation, and she welcomes the rest of the council to join her, other workers, and a group of economists in that discussion.

Last week, at González's recommendation and to Councilmember Lisa Herbold's great satisfaction, Councilmember Teresa Mosqueda pulled the Tax Amazon proposal sponsored by Sawant and Councilmember Tammy Morales. The package of proposals would tax the payrolls of wealthy business to pay for pandemic relief checks this year, and then later invest in housing and Green New Deal job training. The council's Budget Committee planned to vote on the tax this week, after two long meetings last month.

In her memo to the council, González said she was convinced to shelve the bill after reviewing an opinion from the City Attorney's office—which hasn't been made public—and an opinion from the Attorney General's Office on the legality of holding meetings on the legislation while Governor Jay Inslee's Proclamation 20-28 remained in effect.

That proclamation, which is set to expire at the end of the month, bars council meetings (or any meeting subject to the OPMA) unless the public can "attend" remotely, and prohibits the council from taking any "actions" that aren't "necessary and routine matters" or "matters necessary to respond to the COVID-19 outbreak and the current public health emergency."

González argued that "there appears to be wide agreement" that the Tax Amazon proposals weren't "necessary and routine" matters, since when was the last time the council followed through with a tax on big business? *badoomch* She also argued the package wasn't "necessary to respond to the COVID-19 outbreak," since the tax would outlive the pandemic, and since certain provisions in the bill (such as investments in job training and creating housing boards) "bear little to no relationship to the current emergency."

Sawant and labor attorney Dmitri Iglitzin pushed back on this analysis.

Iglitzin argues that the Governor's emergency powers don't give him the authority to prevent agencies from discussing certain subjects in a meeting. They allow him to prohibit a lot of things, such as public gatherings, selling stuff, and "such other activities as he or she reasonably believes should be prohibited to help preserve and maintain life, health, property or the public peace." But cities, which have constitutional authority, can handle their own business, and holding a virtual meeting to discuss a tax "is not something that the governor can reasonably believe must be prohibited to help preserve and maintain life, health, etc., unless you believe that government is bad," he said.

"This is not a legal close call on the governors authority to tell the city council what it can and can’t legislate about," Iglitzin continued, "So the underlying idea must be that the city council couldn’t meet virtually without violating the Open Public Meetings Act." Iglitzin thinks that's a weird argument to make.

The OPMA states that "all persons shall be permitted to attend any meeting of the governing body of a public agency," and Iglitzin argues that virtual venues fulfill that requirement. Moreover, digital meeting rooms, which can hold thousands, make deliberations "much more accessible than City Hall," he said.

The opinion of the Attorney General's Office on OPMA compliance places a lot of value on the public having the ability to attend meetings "in person, if they choose," or else, somewhat bizarrely, at an "agency meeting location" with a "speakerphone available." But Iglitzin holds that the public can be "present in cyberspace...which is completely consistent with the statute as written."

"If the governor and Attorney General’s office really believe that the OPMA literally (and pointlessly) requires that a speakerphone be set up in an accessible public place in relation to any otherwise virtual agency meeting, he could have suspended that particular requirement of the OPMA, instead of suspending the agency meetings themselves," Iglitzin said.

In the Salish Current, Washington Coalition for Open Government President Toby Nixon more or less supports this view. "The [OPMA] still fully applies to all remotely held public meetings during the COVID-19 a minimum, all council meetings must be made available over the phone so people can call in and listen to their local governments’ deliberations," Nixon told the paper, adding that all discussions of public businesses 'need to be done in a place where the public can observe it, but not necessarily participate directly.'"

And, again, Iglitzin adds, Inslee's emergency powers don't grant him the power to prohibit a city from violating the OPMA, because doing so would "not relate to life, health, property or the public peace."

Sawant called the other council members' concerns about violating the OPMA "excuses."

"I don’t agree with the interpretation from Herbold and González and the political establishment, nor do I believe that this is any way actually motivated by their interpretation. This is all just smoke and mirrors. It’s an attempt to tie up the movement without saying they’re doing the bidding of big business," she said.

"I don’t think the incredible irony that González is portraying herself as a defender of the Open Public Meetings Act should be lost on anyone, when she and Herbold were blatantly in violation of the act in 2018," Sawant continued, referencing the lawsuit the city settled regarding Mayor Jenny Durkan and the non-Sawant council members "secretly deciding to repeal a controversial head tax on big businesses before a public meeting and vote," as the Seattle Times put it.

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If the other council members—apart from Mosqueda, who has "repeatedly affirmed her commitment to progressive revenues," Sawant said—truly only harbored concerns about violating the OPMA, then what's stopping them from announcing their strong support for the proposal, or else coming out in a personal capacity in support of the Tax Amazon ballot initiative movement?

Sawant also argues that "necessary and routine" or "necessary to respond to COVID-19" are "extremely subjective" terms, pointing to upcoming Community and Economic Development committee meetings on the University District Business Improvement Area as "not routine" and "only necessary from the perspective of businesses."

"I’ve been on the city council for over six years and nothing really surprises me, but this is truly Orwellian," Sawant added. "We’re in an emergency and that’s why we can’t do what’s needed to deal with the emergency?"