Aug 5 Black Lives Matter chalk I

FILE — Sunny Behl writes a message in chalk on the sidewalk during a Black  Lives Matter protest on Wednesday, Aug. 5, 2020, at Wixson Park in Selah, Wash.

Selah city officials must give an email from a City Council member to a man suing the city for violating the open meetings act over a discussion on chalk art.

In a written ruling issued Tuesday, Yakima County Superior Court Judge Gayle Harthcock rejected the city’s arguments that the document was protected by attorney-client privilege and an ordinance barring the release of anything discussed in a closed-door meeting by participants.

“After reviewing the document it is obvious that an action occurred that is not authorized to take place in an executive session, therefore the action itself is not protected,” Harthcock wrote in her order. She has given the city until Jan. 29 to turn the email over to attorney Tim Hall.

“I think it was the right ruling, and I don’t think the court could have ruled any other way,” said Hall, who is representing Trent Wilkinson in his open meetings and public records suits against the city.

D.R. “Rob” Case, Selah’s attorney, declined to comment on the ruling or if the city would appeal.

Wilkinson initially sued the city alleging that council members conducted an illegal vote in a closed meeting to direct city staff to remove chalk art from city streets.

Chalk art appeared on city streets in June in support of the Black Lives Matter movement following the death of Minneapolis resident George Floyd, along with anti-racist messages and criticism of City Administrator Don Wayman, who has criticized the anti-police-brutality movement and its local supporters.

Wayman has repeatedly directed city crews to remove the art, triggering a federal lawsuit against the city.

At a July 28 council meeting, after Councilman Kevin Wickenhagen spoke about concerns that chalk art was protected speech, Wayman said the council had voted to go ahead with the removal at its previous meeting.

“We had two council members vote against cleaning it up, but we had five voting for it,” Wayman said.

Wilkinson’s lawsuit alleges that vote took place in a July 14 executive session when the council was meeting to discuss potential lawsuits. Under the law, agencies and councils can exclude the public from meetings to discuss potential or actual litigation, personnel matters and real estate transactions, but no votes can be taken.

Case, during a hearing on the public records lawsuit, argued that Wayman had “misspoke” about the council vote, but Hall noted that none of the council members questioned Wayman about the statement at the time.

As part of the lawsuit, Wilkinson filed a public records request in September for any email sent by council members to each other or city staff regarding any meeting acts violations, including straw polls during executive sessions.

The city did not respond until December, when its public records officer, Treesa Morales, said one email could not be released because it involved matters discussed between the council and the city’s attorney, as well as a city ordinance barring the disclosure of the contents of a closed meeting.

Morales did not provide a redacted copy of the email, nor a log that details the reasons a document had been either redacted or withheld. The email’s author is only identified as a council member.

The records suit also states that the city failed to respond within five days of receiving the request. Morales, in court documents, said the request was not received through the city’s online public records request portal, but rather an email and was not seen until December.

Harthcock granted Hall’s motion to review the email privately in her chambers and determine if it cold be released.

In her ruling, Harthcock said the email was not written as part of a decision-making process, and while the meeting was convened to discuss threatened lawsuits, it was written after the meeting and was not directed to Case.

Since the email was about an action that occurred at the meeting that was not authorized, the city cannot invoke its ordinance on closed-door meetings to block its release, Harthcock said.

In addition to Wilkinson’s lawsuit, the city, Wayman and Mayor Sherry Raymond are being sued in U.S. District Court by the Selah Alliance For Equality for removing signs promoting racial equality and calling for Wayman to be fired.

Reach Donald W. Meyers at dmeyers@yakimaherald.com or on Twitter: donaldwmeyers, or https://www.facebook.com/donaldwmeyersjournalist.