Opinion
No. 62869-1-I.
January 25, 2010.
Appeal from a judgment of the Superior Court for King County, No. 07-2-30322-7, Mary Yu, J., entered December 12, 2008.
Affirmed by unpublished opinion per Appelwick, J., concurred in by Schindler, C.J., and Lau, J.
The party seeking to establish a violation of the Open Public Meetings Act, chapter 42.30 RCW, must demonstrate that members of a governing body met privately to discuss government business. But, no OPMA violation occurs if the private meeting does not involve a majority of the governing body. Because Clawson's claim of an OPMA violation rests solely on speculative allegations about the identity of the participating council members, he failed to establish a material factual issue as to whether a majority of the council members participated in a private meeting. The trial court therefore properly dismissed his claims on summary judgment, and we affirm.
FACTS
Dan Clawson, a member of the Renton City Council from 1996 to 2008, filed this action on September 18, 2007, against Randy Corman, Denis Law, Marci Palmer, and Don Persson, four other members of the seven member council. He alleged that the four defendants had knowingly violated chapter 42.30 RCW, the Open Public Meetings Act (OPMA), when they privately discussed opposition to the candidacy of Toni Nelson for the position of 2007 council president. The trial court dismissed Clawson's claims on summary judgment.
Clawson's action originally included a second alleged violation of the OPMA involving a council vote on design guidelines, but he has abandoned that claim on appeal.
Clawson's claim rests on allegations that the four defendants conducted a series of private communications among themselves. Viewed in the light most favorable to Clawson, the record established the following contacts:
Persson/Corman Contact
On about November 13, 2006, Persson called Corman, the current council president, to express his concerns about Nelson serving as 2007 council president. At about the same time, Ruthie Larsen, a Renton resident, called Persson and asked about a rumor that the council had already decided to deny Nelson the position of 2007 council president.
Persson denied having any preelection contact with Palmer about Nelson's candidacy and cannot recall any communication with Law about the issue.
Palmer/Law Contact
On the afternoon of November 13, 2006, Palmer called Law and told him that Nelson was very angry after hearing concerns about her candidacy for council president. In their declarations, both Palmer and Law denied having any contact with either Persson or Corman about the election issue.
Corman/Medzegian Contact
On November 13, 2006, Julia Medzegian, a Renton City Council staff member, called Corman and asked him to contact Nelson, because two council members had told Medzegian that they did not support Nelson's candidacy. Corman called Nelson and advised her of the information that Medzegian had provided.
Corman knew of Palmer's concerns about Nelson's candidacy from both Medzegian and Persson, but cannot recall whether he communicated with Palmer about the concerns before he called Nelson.
At the Renton City Council meeting on the evening of November 13, 2006, Nelson was elected 2007 president by a unanimous, 7-0, vote.
Corman's Blog Entry of December 5, 2007
In a blog entry dated December 5, 2007, Corman asserted that there were "some one-on-one discussions" among council members about the election of the 2007 council president. Corman acknowledged that he had called Nelson before the election and that "[s]ome members" appeared to be concerned about her ability to represent all council members.
Corman's Blog Entry of January 4, 2008
In a blog entry dated January 4, 2008, Corman noted that Clawson's allegations of an OPMA violation were based on the fact that "two separate council members" had called Corman to express concerns about Nelson's candidacy.
Standard of Review
When reviewing a grant of summary judgment, an appellate court undertakes the same inquiry as the trial court. We consider the evidence and the reasonable inferences therefrom in the light most favorable to the nonmoving party. Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982).
Schaaf v. Highfield, 127 Wn.2d 17, 21, 896 P.2d 665 (1995).
CR 56(c); White v. State, 131 Wn.2d 1, 9, 929 P.2d 396 (1997).
The moving party under CR 56 bears the initial burden of showing the absence of an issue of material fact and an entitlement to judgment as a matter of law. The moving party can satisfy this initial burden by demonstrating the absence of evidence supporting the nonmoving party's case. The burden then shifts to the nonmoving party to set forth specific facts demonstrating a genuine issue for trial. Summary judgment should be entered if the nonmoving party "fails to establish the existence of an element essential to that party's case."
Schaaf, 127 Wn.2d at 21.
Young v. Key Pharms., Inc., 112 Wn.2d 216, 225 n. 1, 770 P.2d 182 (1989).
Kendall v. Douglas, Grant, Lincoln, Okanogan Counties Pub. Hosp. Dist. No. 6, 118 Wn.2d 1, 9, 820 P.2d 497 (1991).
Id.
DECISION
Under Washington's OPMA, "[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." The purpose of the OPMA is to permit the public to observe the steps employed to reach a governmental decision. We construe the OPMA liberally.
RCW 42.30.030.
Cathcart v. Andersen, 85 Wn.2d 102, 107, 530 P.2d 313 (1975).
To prevail on his OPMA claim, Clawson must establish that (1) members of the governing body, (2) held a "meeting," (3) in which the governing body took "action" in violation of the OPMA, and (4) the members of the governing body knowingly violated the statute. For purposes of the OPMA, a "meeting" is construed broadly to occur if a majority of the governing members discuss or consider agency business. A meeting does not require the contemporaneous physical presence of the members. But, no "meeting" occurs and the OPMA is not violated "if less than a majority of the governing body meet."
See RCW 42.30.120; Wood v. Battle Ground Sch. Dist., 107 Wn. App. 550, 558, 27 P.3d 1208 (2001).
Id. at 564.
See Id. (exchange of emails may constitute "meeting" under the OPMA).
Id. at 564.
Clawson contends there is a genuine factual issue as to whether the communications among the four defendants were sufficient to constitute a "meeting" of a majority of the council to discuss Nelson's candidacy. He relies on the uncontroverted evidence that two "subgroups" of the four defendants — Persson/Corman and Palmer/Law — acknowledged discussing Nelson's candidacy before the council election. Clawson asserts that Corman's blog entries indicating that he told Nelson that "[s]ome members" of the council had concerns about her candidacy and that "two separate council members" had called him about their concerns support a reasonable inference that Palmer had called Corman. He argues this communication "would have connected the two subgroups, involving a quorum in the discussion if not already involved." But, because the alleged inference rests solely on speculation, it fails to create a material factual issue.
Once the moving party has met its burden on summary judgment, the nonmoving party may not rely on "conclusory allegations, speculative statements or argumentative assertions." By declaration, Corman stated that he knew of Palmer's concerns about Nelson from others and could not recall whether he spoke to Palmer. Palmer flatly denied having any contact with Corman about the issue. These circumstances must be viewed in the light most favorable to Clawson, the nonmoving party. Even with this inference, the evidence — that Corman's blog later referred to the concerns of "some members" of the council and to contact from "two separate council members" — does not support a finding that Corman is referring to the other defendants. Nor does it support a finding that Palmer, contrary to her sworn declaration, contacted Corman about the election issue. Allegations based on complete speculation about the specific identity of the referents in Corman's blog are insufficient to create a material factual issue about the existence of a meeting.
Las v. Yellow Front Stores, Inc., 66 Wn. App. 196, 198, 831 P.2d 744 (1992).
In the alternative, Clawson contends that the summary judgment motion should have been denied, because it was based almost entirely on declarations that were particularly within the knowledge of the defendants. Clawson relies on decisions noting that, in certain circumstances, summary judgment should be denied "so that the opponent may attempt to disprove the alleged facts by cross-examination and by the demeanor of the witness while testifying."
In re Estate of Black, 116 Wn. App. 476, 487, 66 P.3d 670 (2003), aff'd, 153 Wn.2d 152 (2004).
The cases that Clawson cites, however, are inapposite, because the moving party's evidence was substantially impeached, thereby creating a credibility issue requiring trial. Under certain circumstances, credibility issues may preclude summary judgment. But, the party opposing summary judgment
See, e.g. Estate of Black, 116 Wn. App. at 486 (trial court improperly granted summary judgment despite concerns about the credibility of the moving party's primary witnesses); Mich. Nat'l Bank v. Olson, 44 Wn. App. 898, 723 P.2d 438 (1986) (disputed evidence as to the identity); Balise v. Underwood, 62 Wn.2d 195, 381 P.2d 966 (1963) (defendant took contradictory positions); Felsman v. Kessler, 2 Wn. App. 493, 468 P.2d 691 (1970) (defendant refused to answer certain questions during discovery).
See Amend v. Bell, 89 Wn.2d 124, 129, 570 P.2d 138 (1977).
must be able to point to some facts which may or will entitle him to judgment, or refute the proof of the moving party in some material portion, and that the opposing party may not merely recite the incantation, "Credibility," and have a trial on the hope that a jury may disbelieve factually uncontested proof.[]
Id. (quoting Rinieri v. Scanlon, 254 F. Supp. 469, 474 (S.D.N.Y. 1966)).
Despite full access to the tools of discovery, Clawson does not identify any specific disputed facts or evidence that tend to undermine the material declarations supporting summary judgment.
Because the evidence failed to support an inference that a majority of the Renton City Council met privately to consider the 2007 election, Clawson cannot demonstrate a violation of the OPMA. The trial court properly entered summary judgment.
Affirmed.