Opinion
No. 36994-3-III
06-01-2021
Donna ZINK and Jeff Zink, wife and husband, and the marital community composed thereof, Appellants / Cross Respondents, v. CITY OF MESA, a Washington Municipal Corporation; Duana Rae Ross, a married woman; David Ferguson, a married man; and Elizabeth Davis, a married woman, Respondents / Cross Appellants, Patrick Fay, a married man; Franklin County, a Washington Municipal Corporation; Richard Lathim, in his capacity as Franklin County Sheriff; Ruben Bayona, an individual; Franklin County Sheriff's Deputy Scantlin, an individual; and Brian Pfeiffer, an individual, Defendants.
John Graham Schultz, Leavy, Schultz, Davis & Ruff P.S., 2415 W Falls Ave., Kennewick, WA, 99336-3068, Justine Theresa Koehle, Attorney at Law, 1333 Columbia Park Trl. Ste. 220, Richland, WA, 99352-4713, for Respondent(s).
John Graham Schultz, Leavy, Schultz, Davis & Ruff P.S., 2415 W Falls Ave., Kennewick, WA, 99336-3068, Justine Theresa Koehle, Attorney at Law, 1333 Columbia Park Trl. Ste. 220, Richland, WA, 99352-4713, for Respondent(s).
OPINION PUBLISHED IN PART
Pennell, C.J. ¶ 1 The Open Public Meetings Act of 1971 (OPMA), chapter 42.30 RCW, is a powerfully worded statute that broadly protects the public's right of access to all forms of public meetings. Under the terms of the statute, governmental bodies cannot set conditions on the right to attend a public meeting unless reasonably based on the need to keep order.
¶ 2 Donna Zink was excluded from a Mesa city council meeting because she sought to video record the proceedings. The video recording was not inherently disruptive; Ms. Zink was prohibited from making a recording simply because at least some members of the city council did not wish to be on video. By conditioning Ms. Zink's attendance at the city council meeting on her agreement not to make a video recording, Mesa violated Ms. Zink's rights under the OPMA. We affirm the trial court's order granting Ms. Zink's OPMA claim against Mesa, but reverse the court's award of attorney fees, as it was too restrictive.
In the published portion of this opinion we address Ms. Zink's claims under the OPMA. We address her remaining claims in the unpublished portion of our opinion and grant partial relief based on the trial court's summary disposition of various claims against the Zinks.
FACTS
¶ 3 Mesa is a noncharter code city, with a mayor and city council organized under chapter 35A.12 RCW. As a noncharter code city, the city council is the governing body of Mesa. Former RCW 35A.12.010 (1997). The mayor serves as presiding officer for the city council, having a vote only in case of a tie concerning certain matters. Former RCW 35A.12.100 (1979). In 2003, the Mesa city council consisted of five members. The mayor was Duana Ross.
¶ 4 The Mesa city council had a meeting scheduled to commence at 7:00 p.m. on May 8, 2003. There were routine items on the agenda. Three of the council's five members were present for that day's meeting, constituting a majority of the governing body.
¶ 5 Local resident Donna Zink appeared for the May 8 city council meeting and began video recording a few minutes before 7:00 p.m., utilizing a mini-recorder and tripod. Ms. Zink had previously recorded other city council meetings. She had also notified the city attorney of her intent to video record the council meetings and had not received any objections.
¶ 6 Shortly after Ms. Zink began recording, council member Patrick Fay and Mayor Duana Ross told Ms. Zink they did not care to be on tape. Two other members of the council were present, but remained silent. The mayor told Ms. Zink she needed permission to tape the proceedings. Ms. Zink asked what law required such permission. Ms. Zink stated she was "not turning the camera off so call the police." Ex. 51 at 34 sec. through 37 sec.
¶ 7 Mayor Ross then called 911 at the prompting of council member Fay. During the call, Mayor Ross stated "we have some problems here with a citizen" and "we would like her to be removed from city hall." Ex. 16 at 14 sec. through 27 sec. After getting off the telephone with 911, Mayor Ross called the council meeting to order and then immediately announced a 10 minute recess.
¶ 8 A sheriff's deputy arrived and talked to Ms. Zink. Ms. Zink informed the officer she had a right to record the meeting as it was a public meeting and she was not causing a disturbance. A discussion ensued over whether Washington's privacy act, chapter 9.73 RCW, applied to Ms. Zink's recording, or whether the OPMA applied. While apparently reviewing the OPMA, Mayor Ross commented she had three council members objecting to the video tape because it made them feel uncomfortable while they were trying to do their jobs. Mayor Ross also stated she had tried to consult with the city attorney about the issue, but had not yet heard back.
¶ 9 The deputy eventually said he had conferred with council member Fay, who also worked as a sheriff's deputy. According to the deputy, council member Fay reported learning from a prosecutor that a recording could not be made without two-party consent. The deputy claimed Ms. Zink was trespassing and would be arrested if she did not either leave or stop recording. Ms. Zink did not stop recording. Ms. Zink was then handcuffed, transported to the Franklin County jail, given a citation, and released. After Ms. Zink's removal, the council resumed its meeting and conducted business on its agenda.
¶ 10 Ms. Zink was criminally charged via citation with trespass in the first degree. She was arraigned on May 12, 2003, and was required to return to court for a pretrial conference on June 11. Instead of returning for a pretrial conference, the docket shows the case was dismissed through a motion of the prosecutor on May 20.
PROCEDURE
¶ 11 In 2005, Ms. Zink and her husband sued the city of Mesa, Mayor Ross, the three city council members present that night (collectively Mesa), Franklin County, the Franklin County Sheriff's Office, the elected sheriff, and the involved deputies. The Zinks made claims regarding violations of the OPMA as well as civil rights and emotional distress claims regarding Ms. Zink's exclusion from the meeting and arrest.
¶ 12 In pretrial rulings, the court disposed of all the Zinks’ claims except the OPMA claim and a tort claim under 42 U.S.C. § 1983 for deprivation of liberty without due process. Also prior to trial, the Zinks settled their claims against the county. Council member Fay later died and the claims against him were voluntarily dismissed. Although the Zinks had originally been represented by counsel, they proceeded to trial pro se. ¶ 13 A jury trial was held in January 2018. In the middle of trial, Mesa filed a motion for directed verdict on both claims. The court granted the motion with respect to the § 1983 claim. The jury subsequently returned a defense verdict on the OPMA claim.
¶ 14 Posttrial, the court ruled the OPMA case was not triable to a jury as a matter of right and the court was not bound by the jury's verdict. The court set aside the jury's verdict and found the city of Mesa violated the OPMA by prohibiting Ms. Zink from recording. The court refused to enter judgment against the mayor and city council members in their individual capacities, finding there was insufficient proof as to that aspect of the case.
¶ 15 Ms. Zink sought attorney fees and costs in the amount of $19,411.65, pursuant to the OPMA. RCW 42.30.120(4). She produced an attorney fee declaration from her prior attorney, documenting the work he had done on the case. The court disregarded most of the fee declaration. The court awarded $5,000.00 in attorney fees, based on its estimate of what would be reasonable under the circumstances. The court also awarded $1,511.49 in costs, for a total judgment against the city of $6,511.49.
¶ 16 The Zinks sought direct review by the Washington Supreme Court. The Supreme Court denied review and transferred the appeal to this court, pursuant to RAP 4.2(e)(1).
ANALYSIS
Open Public Meetings Act
¶ 17 The OPMA provides "[a]ll meetings of the governing body of a public agency shall be open and public and all persons shall be permitted to attend any meeting of the governing body of a public agency, except as otherwise provided in this chapter." RCW 42.30.030. Remedies for violations of the OPMA include mandamus or injunction as provided in RCW 42.30.130, voidance of certain actions as provided in RCW 42.30.060, and recoupment of "all costs" and reasonable attorney fees as provided in RCW 42.30.120(4).
¶ 18 Our review of the OPMA's legal requirements is de novo. Wood v. Battle Ground Sch. Dist. , 107 Wash. App. 550, 558, 27 P.3d 1208 (2001). Statutory terms are interpreted according to the rules for discerning legislative intent. Dep't of Ecology v. Campbell & Gwinn, LLC , 146 Wash.2d 1, 9-12, 43 P.3d 4 (2002). We defer to the trial court for any applicable factual findings. See Miller v. City of Tacoma , 138 Wash.2d 318, 322-23, 979 P.2d 429 (1999). Here, the parties dispute whether an OPMA violation occurred in this case and, if so, whether liability extends only to the city or also to the mayor and individual city council members. These are largely legal matters and are therefore reviewed de novo.
The May 8, 2003, proceedings constituted a "meeting"
¶ 19 One of the elements of an OPMA claim is proof a governing body conducted a "meeting." See Eugster v. City of Spokane , 110 Wash. App. 212, 222, 39 P.3d 380 (2002). The OPMA defines a "meeting" as a gathering "at which action is taken." RCW 42.30.020(4). Our case law has discerned the term "meeting" was intended to have broad application. Wood , 107 Wash. App. at 562, 27 P.3d 1208. The basic requirements are the presence of a majority of the governing body and a collective intent to transact official business. Citizens All. for Prop. Rights Legal Fund v. San Juan County , 184 Wash.2d 428, 442-43, 359 P.3d 753 (2015). ¶ 20 The May 8 session attended by Ms. Zink readily meets the foregoing definition of a meeting. The fact that action had yet to be taken does not mean there was no meeting. It is undisputed that at the time Ms. Zink recorded the proceedings, the mayor and city council members had gathered together with the collective intent to hold a meeting. This is all that is required under the OPMA.
A claim against a governmental entity requires proof of five facts: (1) members (2) of a governing body or a committee thereof (3) of a public agency (4) violated or intend to violate a section of chapter 42.30 RCW, (5) at a meeting. RCW 42.30.030 ; former RCW 42.30.120(1) (1985). When a claim is against an individual member for personal liability, the plaintiff must prove a past violation, not an anticipatory violation, under element (4), and must also prove (6) the individual member had "knowledge of the fact that the meeting [was] in violation" of a provision of the statute. Former RCW 42.30.120(1). The current remedies for a claim against a member found personally liable are a $500 civil penalty for a first violation and a $1,000 civil penalty for subsequent violations. RCW 42.30.120(1) -(2).
The OPMA includes a right to record public meetings
¶ 21 The OPMA recognizes very few avenues for restricting attendance at governmental meetings. The statute recognizes the authority to exclude the public from executive sessions. Former RCW 42.30.110 (2001). In addition, the governing body may remove a member of the public who is disrupting the orderly conduct of business. RCW 42.30.050. But any such removal must be reasonable. In re Recall of Kast , 144 Wash.2d 807, 811-12, 31 P.3d 677 (2001) (per curiam).
¶ 22 One of the core protections under the OPMA is that an individual's right to attend a public meeting cannot be restricted to fulfilment of a "condition precedent." RCW 42.30.040. The statute does not define what is meant by "condition precedent." Black's Law Dictionary defines the term as:
An act or event, other than a lapse of time, that must exist or occur before a duty to perform something promised arises. ? If the condition does not occur and is not excused, the promised performance need not be rendered. The most common condition
contemplated by this phrase is the immediate or unconditional duty of performance by a promisor.
BLACK ’ S LAW DICTIONARY 366 (11th ed. 2019).
The edition of Black's Law Dictionary current at the time of the OPMA's enactment states: "A condition precedent ... is one which to be performed before some right dependent thereon accrues, or some act dependent thereon is performed." Black ’ s Law Dictionary 366 (rev. 4th ed. 1968).
¶ 23 Under the foregoing definition, extracting a promise not to record as a precondition on attendance at a public meeting would appear to qualify as a condition precedent. This understanding is also consistent with the purpose of the OPMA, which is to grant the people of the state of Washington the right to be informed and retain control over governmental agencies. RCW 42.30.010.
¶ 24 The foregoing understanding of the OPMA is consistent with a 1998 attorney general opinion. When asked by a county prosecutor whether "a county legislative body [may] prohibit an individual from using a video or audio recording device to record a meeting or hearing conducted by county officials," the Office of the Attorney General concluded:
A county does not have authority to ban video or sound recording of a meeting required to be open to the public by the [OPMA]; the county could regulate recording only to the extent necessary to preserve order at the meeting and facilitate public attendance.
1998 Op. Att'y Gen. No. 15, at 1.
¶ 25 While we are not bound by attorney general opinions, we generally give them great weight. Five Corners Family Farmers v. State , 173 Wash.2d 296, 308, 268 P.3d 892 (2011). Such weight is especially appropriate here, given the opinion has been in place for over 20 years and the OPMA has been amended several times during this period with no changes that would impact the opinion.
¶ 26 We interpret the OPMA as prohibiting governing bodies from restricting audio or video recordings as a condition precedent to attending a public meeting. This is not to say a governing body cannot exclude a member of the public who is recording a meeting in a disruptive manner. But the undisputed facts show this is not what happened here. The video evidence demonstrates Ms. Zink did not cause a disturbance when she began recording. The discussion between Ms. Zink, Mayor Ross and others was civil and orderly. There were no threats and the discussion took place prior to the council's discussion of items on the agenda. Unlike the circumstances in Kast , Ms. Zink's actions did not constitute an interruption of the council's public meeting. 144 Wash.2d at 818, 31 P.3d 677. The decision to eject Ms. Zink from the May 8, 2003, city council meeting was not reasonable under the circumstances.
The city of Mesa violated the OPMA
¶ 27 Mesa argues that even if a prohibition on audio and video recordings is an invalid condition precedent under the OPMA, the city did not violate the OPMA because the condition was imposed by the mayor, not the city's governing body. We disagree. The mayor was not some sort of a rogue third party. She was the city's chief executive and served as a presiding officer of the city council. When speaking to the 911 operator, Mayor Ross used the first person plural "we" throughout the brief conversation. In addition, while talking during Ms. Zink's recording, the mayor made abundantly clear she was speaking for the council when she directed Ms. Zink to stop recording. Ms. Zink has therefore stated a claim that the city of Mesa's governing body established an invalid condition precedent on her attendance at a public meeting.
The facts do not support individual OPMA liability
¶ 28 Although the city of Mesa is liable for mandamus and injunctive relief under RCW 42.30.130, personal liability against the individual elected officials requires further analysis under the statute. Former RCW 42.30.120(1). To state a claim against the individual officials, Ms. Zink also had to prove each member had "knowledge of the fact that the meeting is in violation" of the OPMA. Id . Notably, this mens rea element is phrased so that the member must have knowledge the meeting itself was in violation of the OPMA, not knowledge that a particular action was in violation of the OPMA.
¶ 29 The trial court held Ms. Zink failed to establish individual liability because Mayor Ross's actions on May 8, 2003, were taken on advice given by the city's attorney. We agree with Ms. Zink that this finding is not supported by substantial evidence. At trial, the former city attorney testified he received a call from the city council the night Ms. Zink was arrested. From the evidence at trial, it appears no one consulted the city attorney until after the Mayor ordered Ms. Zink to stop recording and called 911. At the trial, Mayor Ross testified that the city attorney was not called until just before the sheriff's deputy showed up, and it was the city's clerk/treasurer, Teresa Standridge, who called at Mayor Ross's request.
¶ 30 The trial court's oral ruling, which was not incorporated into its written rulings, was there was no knowledge because none of the respondents had received training on the OPMA. This was an accurate finding based on the undisputed evidence admitted at trial and should be substituted as alternative grounds for affirming the trial court's judgment. RAP 2.5(a) ; see Young v. Toyota Motor Sales , 196 Wash.2d 310, 321, 472 P.3d 990 (2020) (citing Abbott Corp. v. Warren , 53 Wash.2d 399, 402, 333 P.2d 932 (1959) ). It was not until 2014, well after the city council meeting at issue in this case, that our legislature adopted a training requirement for public officials. RCW 42.30.205. This case is an unfortunate example of one where no training took place.
¶ 31 Ms. Zink argues Mayor Ross and members of the city council likely knew their actions were illegal. But as a plaintiff, Ms. Zink bore the burden of proof. Here, there is simply no evidence of knowledge one way or the other. Given this circumstance, Ms. Zink has not and cannot established a basis for individual liability under the OPMA.
In a cross appeal, Mesa argues the trial court erred by finding Ms. Zink's OPMA claim was not subject to a jury trial. We decline to address this claim. Mesa never requested a jury trial under CR 38. Further, any error with respect to the jury trial issue was likely invited when counsel for Mesa consistently asserted in pretrial filings and hearings that the OPMA claim was not triable to a jury.
The Zinks are entitled to reasonable attorney fees under the OPMA
¶ 32 Attorney fees are available under RCW 42.30.120(4) for violations of the OPMA. The Zinks appeal the trial court's attorney fee award, arguing it undervalued their claim for fees. ¶ 33 Reviewing an attorney fee award involves mixed questions of law and fact. Legal issues, such as whether attorney fees are applicable, are reviewed de novo. See Dix v. ICT Group, Inc ., 160 Wash.2d 826, 833, 161 P.3d 1016 (2007). But we afford deference to the trial court's discretionary decisions about the amounts of a fee and cost award. Gander v. Yeager , 167 Wash. App. 638, 647, 282 P.3d 1100 (2012).
Award methodology
¶ 34 The trial court denied the Zinks’ full request for attorney fees after finding problems with 4 of the 120 fee entries proffered by the Zinks’ attorney. Although the attorney requested almost $20,000 in fees, the court awarded only $5,000 based on the low value of the Zinks’ OPMA claim and the court's "years of experience as a trial lawyer." Report of Proceedings (June 22, 2018) (RP) at 15. We agree with the Zinks that the trial court's brief analysis constituted an abuse of discretion.
¶ 35 In awarding attorney fees, the court is required to apply the lodestar methodology. Mahler v. Szucs , 135 Wash.2d 398, 433, 957 P.2d 632 (1998). This involves multiplying the reasonable number of hours spent securing a successful recovery for the client by a reasonable hourly rate. Id. at 434, 957 P.2d 632. "[I]n rare instances," the fee may be adjusted "upward or downward in the trial court's discretion." Id . In considering whether to make such an adjustment, the court may consider facts " ‘such as the contingent nature of success in the lawsuit or the quality of legal representation, which have not already been taken into account.’ " Bowers v. Transamerica Title Ins. Co. , 100 Wash.2d 581, 593-94, 675 P.2d 193 (1983) (plurality opinion) (quoting Miles v. Sampson , 675 F.2d 5, 8 (1st Cir. 1982) ).
¶ 36 Here, the trial court's $5,000 attorney fee award was not issued pursuant to the requisite lodestar methodology. The court did not identify the number of hours reasonably expended on the Zinks’ case or the applicable rate. Nor did the court actively assess the vast majority of the billing records submitted by the Zinks. "[T]he absence of an adequate record upon which to review a fee award will result in a remand of the award to the trial court to develop such a record." Mahler , 135 Wash.2d at 435, 957 P.2d 632.
¶ 37 Apart from the failure to comply with the lodestar methodology, the trial court also overemphasized the lack of economic recovery. The court stated it was awarding only $5,000 in part because: "[i]t started out as a $100 claim, the most the [Zinks] could have gotten is a $100 claim. Nobody in their right mind would pay a lawyer $15,000 to pursue a $100 claim." RP (June 22, 2018) at 15. This reasoning undermines the very logic of the OPMA, which mandates an award of costs and attorney fees for plaintiffs who prevail in litigation of an OPMA claim, regardless of the limited dollar amount available in statutory civil penalties. See RCW 42.30.120(4) (The prevailing party "shall be awarded all costs, including reasonable attorneys’ fees."). The OPMA is a remedial statute, subject to liberal construction. RCW 42.30.910. As such, its provision for award of attorney fees must be liberally construed. Progressive Animal Welfare Soc. v. Univ. of Wash ., 114 Wash.2d 677, 683, 790 P.2d 604 (1990). There is no liberal construction if the statutory requirement of attorney fees can be undermined because the statute provides only for limited penalties.
As mentioned previously, it was actually a claim with no monetary value. Statutory civil penalties (formerly $100 but now $500) are available only against individual members of a governing body and Ms. Zink has not made out a claim for individual liability under the OPMA. Attorney fees and costs are the only amounts recoverable by a prevailing party against municipal entities under the OPMA.
¶ 38 We reverse the trial court's OPMA fee award and remand for further proceedings.
¶ 39 The panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports, and that the remainder having no precedential value, shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR:
Siddoway, J.
Lawrence-Berrey, J.