PORT ANGELES — The Port Angeles City Council may have skirted the law during its selection of City Manager Kent Myers.
The City Council hired Myers on Tuesday for $150,000 a year during the only public meeting held on the appointment.
Myers will succeed Port Angeles City Manager Mark Madsen, who resigned effective Sept. 1, citing “untenable, hostile work conditions” and sharp disagreements with certain council members he never specifically identified.
Myers, a former Hot Springs, Ark., city manager, starts work Jan. 12 after moving to Port Angeles with his wife, Dianne, and their two dogs and two cats.
Myers was selected by City Council members as the council’s top candidate at a Dec. 9 closed-door executive session.
He said he signed the contract a week before a public vote was taken, when he signed “the same” contract again.
State law
The state Open Meetings Act says that public entities, such as city councils, cannot take any action during executive sessions, whether final or not, and that evaluating a candidate for public employment does not include selecting a top candidate.
State Supreme Court case law has invalidated similar decisions made by city councils in executive session, said former Clallam County Deputy Prosecuting Attorney Shirley Nixon.
At its Tuesday meeting, she accused the City Council of “selecting its preferred candidate for a new city manager in a completely closed process,” which could lead, she said, to rendering the Tuesday decision invalid if challenged in court.
She suggested the decision, whether or not illegal, “was clouded by the council’s disrespect for state law.”
Tim Ford, state assistant attorney general for government accountability, also speculated that the City Council’s selection of Myers as its top candidate during a Dec. 9 executive session “should have been made in an open public meeting,” though he also believes a lawsuit may be a moot point.
“Even if someone were to bring a lawsuit, the city could probably correct whatever is alleged is wrongdoing by going to a public meeting and doing what it should have done in the first place, and it looks like the city did that,” Ford said.
Bloor: Not finalized
But City Attorney Bill Bloor, present at the council’s Dec. 9 meeting, said the selection process was still incomplete after the executive session because Myers’ hiring hadn’t been finalized.
“We still had four candidates” at the end of that meeting, he said, adding, “the selection process was completed at the [Tuesday] meeting.”
The City Council hired the Seattle executive search firm Waldron & Co. to find candidates to fill the position.
Eighty applied, a number shaved to four who were introduced to department heads at a Dec. 4 meeting.
The supervisors were told they couldn’t divulge the applicants’ names. This was to protect their standing at their current jobs, under a state law that allows the nondisclosure, interim City Manager Jerry Osterman said.
On Dec. 5, the City Council conducted closed-door interviews and on Dec. 9 reviewed the applications.
The City Council can meet in executive session under a law that allows elected bodies to conduct executive session “to evaluate the qualifications of an applicant for public employment . . . “
Bloor, Mayor Gary Braun and Deputy Mayor Betsy Wharton said in separate interviews that they could not discuss what occurred in the Dec. 9 executive session, citing Section 3 of the City Council Rules of Procedure, which bars disclosure of what occurs in the closed-door meetings by anyone who attends those meetings.
Executive session
But Wharton gave a rough outline.
She said the council told its staff to proceed with the selection of Myers.
“We gave some general parameters for negotiations for our candidate,” she said.
“We gave direction to staff. I understand there is concern about the process, some portion or all of it.
“Could we do it better? We are moving in that direction. Kent Myers is part of us getting there.”
Osterman, who did not attend the meeting, also said, “My understanding is they came out with a preferred sequence of candidates.”
Myers did not attend the Dec. 9 executive session.
“I understand I went through a rating process,” Myers said of the executive session.
“I was rated the preferred choice. I was No.1 among four. The city did advise me they were doing a press release that I had been selected as the preferred choice as city manager, with final action the next Tuesday night [Dec. 16].”
The press release was issued Dec. 10. It said, “The Port Angeles City Council has selected Mr. Kent Myers to be the next City Manager.”
But the press release went a little too far, Osterman said Thursday, admitting he was “premature” in saying that Myers had been selected.
“As it turned out, it was tentative” because at that time, Myers had yet to sign a final contract, Osterman said.
Myers said on Dec. 10 that he had signed a contract with the city. Osterman and Bloor said that the contract was not final until it was approved by the council on the following Tuesday.
Bloor also called the press release “misleading” and said it contained “unfortunate wording.”
“We still had four candidates” at the end of the Dec. 9 executive session, he said.
Myers said that because the contract wasn’t 100 percent final, he delayed signing an agreement to buy a house he had chosen near Port Angeles High School until Wednesday.
But Ford said the press release, which was not disputed by Bloor until he was interviewed this week, made it appear that the City Council took action in the executive session, which it can’t legally do, whether that action is tentative or not.
“It indicates they made a vote that [Myers] was selected,” Ford said.
Agreement
That same day, Dec. 10, Myers and Director of Human Resources Bob Coons refined Myers’ employment contract, faxing it back and forth between Port Angeles and Myers’ Hot Springs home until Myers signed the agreement, Myers said.
“It was sent to me to review and to make sure it met my approval,” he said. “It was still subject to change until [Tuesday] night. I was confident everything would be approved.”
It was also “the same one” Myers ceremoniously signed on Tuesday, he said, and the same contract he told the Peninsula Daily News he signed in the Dec. 11 story, “PA picks new city manager.”
But Bloor took issue with calling the agreement a contract, not disputing the use of that word until a week later in an interview with the Peninsula Daily News.
“What he signed then was a transmittal of some draft terms from the consultant,” Bloor said.
“It was not a contract. The formal contract was signed Dec. 16.”
Like department heads, the City Council was barred from discussing the names of applicants in public session.
But Bloor left open the possibility that applicants’ identities could have been protected in open meetings by simply not referring to the applicants by name.
“So, yes, the City Council, if it had chosen to do so, might have shielded identities as candidates a, b, c and d, and then had more discussion in open session, provided other confidential information were also protected,” Bloor said.
“This may have been possible, but it was not required.”
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Staff writer Paul Gottlieb can be reached at 360-417-3536 or at paul.gottlieb@peninsuladailynews.com.
