Appellate court sides with plaintiff in Open Public Meetings lawsuit against Walla Walla County, commissioners

An appellate court has sent an Open Public Meetings Act case back to the Walla Walla County Superior Court to nullify actions taken by the Board of County Commissioners at a special meeting on Jan. 7, 2021.

The opinion of the Washington State Court of Appeals Division III, published Thursday, April 24, reverses an earlier judgment by Judge Brooke J. Burns of Asotin, Garfield and Columbia counties.

The appellate court sided with Walla Walla County resident R.L. McFarland, who filed the lawsuit against the county and then-Commissioners Gregory Tompkins, Todd Kimball and Jenny Mayberry in 2022.

Walla Walla County Chief Civil Deputy Prosecuting Attorney Jesse Nolte said the county received the opinion and is reviewing it.

“We will be reviewing the decision with our clients to determine our next course of action,” Nolte said. “Other than that, we can’t comment on ongoing litigation.

McFarland said the appellate court’s opinion was a relief.

History

The case centers on a 2021 special meeting in which the Board voted to send a letter to then-Gov. Jay Inslee to voice opposition to his COVID-19 response and recovery plan and to support legislation limiting his emergency powers, according to court documents.

Tompkins had raised the idea of sending a letter at a meeting earlier that week, on Jan. 4, 2021, after getting an email from an organization called We of Liberty.

Inslee released his phased COVID-19 recovery plan a day later, on Jan. 5, 2021. That same day, the Board of County Commissioners sent out a notice about a special meeting for Jan. 7, 2021, with agenda items “Executive session” and “Miscellaneous business to come before the Board.”

According to court documents, McFarland, who had attended the Jan. 4 meeting and heard the discussion about the letter, emailed the Board’s clerk on Jan. 6, 2021, asking whether the Board would discuss the proposed letters at the special meeting. The clerk did not know what would be discussed under the “Miscellaneous” item and told McFarland so.

At the special meeting on Jan. 7, the Board met in executive session, then voted to approve a letter opposing the reopening protocols released by the governor two days before.

The letter was sent to Inslee on Jan. 8, 2021, and another letter was sent to District 16 lawmakers on Jan. 12, 2021, in support of legislation to limit the governor’s emergency powers and to prohibit “discrimination of individuals and/or businesses who choose not to receive the COVID-19 vaccine.”

McFarland filed a lawsuit on Sept. 23, 2022, claiming that the action taken on Jan. 7, 2021, was not an item on the published agenda of the meeting, in violation of the Open Public Meetings Act.

For relief, he asked for attorney costs, civil penalties against the named commissioners that McFarland said would be donated back to the county, and a judgment nullifying the actions taken at the special meeting.

The case, filed in Walla Walla County Superior Court, was heard by Burns of Asotin, Garfield and Columbia counties.

Court documents show that the county argued that the notice did abide by the OPMA and that the lawsuit failed to show knowledge of a violation by the commissioners; that emergency exemptions applied because of COVID-19; that McFarland lacked standing to sue; and that McFarland unreasonably delayed filing the lawsuit.

Local judgment

Burns issued a letter on Aug. 16, 2023, writing that McFarland did have standing to sue and that the notice of the special meeting was deficient.

She wrote that the case must proceed to trial to answer questions related to the knowledge claim and emergency claim.

She reconsidered her decision based on legal and factual analysis from the county, issuing another letter on Nov. 3, 2023.

In that letter, Burns said that McFarland had standing to sue the Board’s members but not the county as a whole.

She said that while the meeting notice was deficient and there was no “emergency,” there was also no evidence that the Board’s members had any knowledge of an OMPA violation.

“Given there was no knowing violation, the Court does not need to go any further,” she wrote in the letter.

In an order issued on Nov. 29, 2023, Burns sided with the county, dismissing the case with prejudice on the basis that McFarland unreasonably delayed filing his claim.

McFarland disagreed with that judgment and appealed to the Washington State Court of Appeals Division III in eastern Washington.

'Paper clash'

In the opinion released by the appellate court, author Judge George Fearing said there was a “paper clash” between McFarland’s attorney and the county before the lawsuit was filed.

The communication lasted from Nov. 12, 2021, about 11 months after the alleged violation, until June 2022, according to court documents. The lawsuit was filed three months later.

Fearing, and concurring Judges Robert Lawrence-Berrey and Anthony Hazel, found that the issue was not moot and that McFarland had not unreasonably delayed in filing the lawsuit.

“R.L. McFarland’s counsel persistently informed Walla Walla County of its error and eventually threatened suit. Even after the threat of suit, the county made no corrections. Even after McFarland filed suit, Walla Walla County denied any mistake and refused to rectify any violation of the OPMA. This failure to take action confirms that McFarland did not lull the county into a false sense of security by reason of the lack of a lawsuit,” the opinion said.

The appellate court agreed with Burns that the Board violated the OPMA on Jan. 7, 2021, because the special meeting’s agenda did not include discussion or action on the letters.

It ultimately reversed Burns’ judgment in favor of Walla Walla County and the commissioners, siding with McFarland and agreeing with McFarland’s request that the letters and resolution authorizing them be nullified.

Fearing noted that the lawsuit questioned whether the Board violated the Open Public Meetings Act, not whether Inslee handled the pandemic well.

“We would issue the same ruling, based on the OPMA, if the WWBOC had written letters to the Washington governor and to state legislators that advocated for and praised the measures taken by the governor,” the opinion said.

What’s next

The action sends the case back to Walla Walla County Superior Court to nullify the action, award McFarland costs and determine whether or not civil penalties are appropriate. 

Michael de Grasse, McFarland's attorney, said the county can petition the state Supreme Court to review the case, ask the appellate court to reconsider its opinion, or let the case move back to the trial court. 

McFarland, who has been regularly attending government meetings in the Walla Walla Valley since 2008, said he was pleased with the outcome, though he noted that next steps depend on how the county responds.

“In the meantime, I am so relieved … Judge Fearing’s opinion is more than I could have ever thought would come out of it,” he said in an interview. “And what really pleased me was to learn that not all opinions are published, but this opinion either is or will be published, so it can be cited in future cases.”

He said communication is what is important to him.

“It would be nice if it was fully concluded, but as I understand it, Judge Fearing’s opinion is published, regardless of what might come next,” McFarland said. “So to me, that's a huge deal.”

Kate Smith, Walla Walla Union-Bulletin can be reached at katesmith@wwub.com or 509-577-7709.