June 30 Chalk Art.JPG

Protesters draw chalk art on the sidewalk and steps in front of Selah City Hall on Tuesday, June 30, 2020 in Selah, Wash. About 35 people marched from the Selah Civic Center to Selah City Hall where people took turns speaking about racism and LGBTQ discrimination before drawing and writing messages in chalk.

A Selah City Council member said her colleagues took an informal vote behind closed doors on chalk art in July.

Suzanne Vargas, in her July 29 email to Mayor Sherry Raymond and copied to her council colleagues, asked for the city to investigate a potential violation of the state’s Open Public Meetings Act.

“During our study session last night (July 28), Mr. Wayman referenced some information on chalk removal that I believe to be derived from our executive session,” Vargas wrote, referring to City Administrator Don Wayman. “This comment also exposed our use of a straw poll, which I believe to be beyond the parameters of permitted activities with executive sessions.”

Vargas’ email was the subject of a public-records lawsuit. It was released Friday through public records requests as a result of a settlement of that lawsuit and another suit alleging the council took an illegal vote.

Wayman and two council members said that Vargas’ recollection of the meeting was not accurate.

“The fact is her email contradicts what eight other people in the room said. Eight other people said there was no vote,” Wayman said. “Is (Vargas’ email) accurate? It’s probably politically motivated, but it is wrong.”

“I believe the email and the Superior Court case record, including the judge’s ruling, speak for themselves,” Vargas said, referring to a Yakima County Superior Court ruling that the email contained evidence of an open-meetings violation.

Trent Wilkinson, a Yakima County resident, filed a lawsuit against the city in September alleging that the city violated the state’s open meetings law with a vote in closed session. Wilkinson argued that at the July 28 meeting, Wayman reminded council members that they voted 5-2 to authorize the city to remove chalk art from public streets and sidewalks.

Wilkinson’s suit alleged that the vote was taken during a July 14 executive session that was convened to discuss potential litigation. Under state law, the council can meet behind closed doors to discuss matters such as lawsuits, real-estate transactions, security measures and personnel matters, but cannot take any action in those meetings.

Chalk art controversy

During the summer, city crews erased pro-Black Lives Matter chalk art from a cul-de-sac, prompting protests in which people drew chalk art on sidewalks at City Hall and in streets promoting the antiracism and anti-police-brutality movement and calling for Wayman’s firing after he made statements disparaging the movement and its local supporters.

As part of his lawsuit, Wilkinson also filed a public records request for any email from council members discussing the meeting and possible votes conducted during it.

In December, Wilkinson filed a second suit, alleging the city violated the state’s Public Records Act by not responding to his request within five business days as required.

City Attorney D.R. “Rob” Case argued the city was not aware of Wilkinson’s records request until the suit was filed because he did not file it through the city’s online records request portal. Case also said that the only email matching Wilkinson’s request was exempt from disclosure because it involved attorney-client privilege, was an interagency discussion and city ordinances bar disclosing what happened in a closed meeting.

As for Wayman’s remarks, Case said Wayman “misspoke” about a vote.

But Yakima County Superior Court Judge Gayle Harthcock ordered the email released, dismissing the city’s arguments and noting that it referenced a violation of the open meetings act.

Lawsuits settled

The council voted Tuesday to settle the lawsuits, paying Wilkinson $45,000 for the public records act suit and giving him an unredacted copy of the email in return for having both suits dismissed with prejudice, meaning he cannot refile them.

Wayman said the PRA suit was a “failure on the part of our PRA clerk,” but he said Wilkinson and his attorney agreed that the open meetings lawsuit was frivolous.

“If you read deep enough into the lawsuit, it was withdrawn and acknowledged by the opposing side as frivolous,” Wayman said. “(Vargas’ email) was contradicted by the plaintiffs themselves.”

But attorney Tim Hall, who represented Wilkinson, disagreed.

“I would never agree to that,” Hall said.

While the settlement states that both sides agreed the distribution of the settlement money was consistent with the city’s position that the OPMA lawsuit was “frivolous,” it also states that Wilkinson “does not admit, concede or believe that the above-specified OPMA litigation is or has ever been frivolous, without merit or valueless.”

In the open-records lawsuit, the council’s current members and Chris Lantz, who resigned from the council after that meeting, signed declarations stating that no illegal actions were taken in the July 14 meeting. However, Vargas’ declaration states that “no final vote” was taken, while the others emphatically stated there was no vote.

Vargas declined to comment on the different wording in her declaration.

Council members Cliff Peterson and Roger Bell both said that Vargas’ statement was wrong, that there was no vote taken in that meeting.

Peterson said Vargas was new on the council, appointed to fill the vacancy created by Jeremy Burke’s resignation, and asked if something that happened in the meeting was a straw poll or vote.

“We did not take any kind of vote, nor did we do anything that I would consider illegal or questionable,” Peterson said.

Bell said if anything like what Vargas described had happened, other council members would have shut it down.

“It’s pretty consistent that occasionally something comes up, but it’s always another member who would say that it’s not appropriate in this session,” Bell said.

Asked why he didn’t say something to Wayman when he alluded to a vote, Bell said he didn’t know if it registered with him what Wayman was saying. And if it had, he said he wouldn’t have dealt with it publicly.

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