All Wapato City Council actions since February 2018, including the appointment of the city administrator, mayor and a majority of council members, could be declared null and void in court, according to a document obtained by the Yakima Herald-Republic.
The 15-page memo, dated April 2, was prepared by the attorneys then representing the city and addressed to Mayor Dora Alvarez-Roa and council members. It says a lawsuit filed against the city by eight residents alleging state Open Public Meetings Act violations puts Wapato “in a tenuous position.”
Kenyon Disend's memorandum on Ayres et. al. v. City of Wapato.
The memo from Issaquah-based Kenyon Disend noted that any settlement acceptable to the plaintiffs likely would involve the termination of Juan Orozco as city administrator.
The “facts and law are simply not on the city’s side” and the firm could not in good faith continue to argue against the allegations, the memo concluded.
The Yakima Herald-Republic received an unsolicited copy of the document, which was marked “confidential” and “not for public disclosure.”
Kenyon Disend attorney David Linehan declined to comment on the specific contents of the memo. But he did say that the document’s disclosure was concerning.
“The memo is clearly and conspicuously marked as privileged,” Linehan said in an emailed statement. “It was intended solely for the eyes of the mayor and the seven members of the City Council, and we provided a copy only to those eight individuals and, subsequently, to the new city attorney. We are concerned that the memo has somehow made it into the hands of someone outside of this intended group of recipients.”
Kenyon Disend attorneys withdrew from the case April 9. Attorneys with the Seattle-based firm Ogden Murphy Wallace have since picked up the open meetings case.
Julie Norton, the lead attorney with Ogden Murphy Wallace, said the firm is still “coming up to speed” on city operations and matters related to the lawsuit and has not been involved with the litigation or settlement discussions to date.
“We are certainly hopeful that we can reach an amicable resolution of the lawsuit with the plaintiffs,” Norton wrote in an emailed April 24 statement. “As general counsel, and experienced municipal attorneys, our ultimate goal is to help the city move forward in the most positive way possible.”
Orozco and Alvarez-Roa did not respond when asked for comment.
State law requires that the actions of public agencies “be taken openly and that their deliberations be conducted openly” in public meetings.
The civil lawsuit — Ayres et. al. v. City of Wapato — was filed Sept. 21 in Yakima County Superior Court against the city, Orozco, Alvarez-Roa and four council members. It alleges multiple violations of the Open Public Meetings Act, including “secret” and illegal meetings, failure to appropriately publish agendas and notice of council meetings, and a $95,000 city administrator contract given to Orozco.
The memo notes problems with council actions on dates beyond those highlighted in the lawsuit.
The council decided at a Feb. 20, 2018, meeting to change the regular City Council meeting time from the first and third Mondays of the month at 7 p.m. to a monthly meeting on the first Wednesday of the month at 6 p.m.
The vote was 3-3, and Orozco, who was mayor at the time, voted to pass the ordinance and so “break the tie” — which Washington law does not allow. Passage of any ordinance requires the vote of at least four council members in a second-class city like Wapato.
“Actions taken at the February 20, 2018, meeting call into question virtually all of the City Council’s actions subsequent to that date,” according to Kenyon Disend’s memo.
Those actions include, generally, council approval of all minutes, claims, settlements, policy amendments, city festivals, budget amendments and contracts. Also called into question:
• Approval of a cemetery contract and re-establishment of a code enforcer/building inspector position at the March 2018 meeting.
• Approval of the transfer of funds for pool renovation and community center improvements at an April 2018 meeting.
• Approval of cemetery changes and authorization of the city’s jail closure at a May 2018 meeting.
• Approval to remove Councilmen Tony Guzman and Tony Gaytan and appoint Irasema Cantu Barbara Perez at June, July and August 2018 meetings.
• Approval to create a city administrator position, appoint Alvarez-Roa as mayor and appoint Orozco as administrator at a September 2018 meeting.
• Appointment of Chuck Stephens, Joel Torres and Brinda Quintanilla-Bautista to the City Council at an October 2018 meeting.
The attorneys observed that removing a majority of council members due to “technical” defects would be “draconian.”
“The purpose of OPMA (Open Public Meetings Act) is to ensure that the council’s business is conducted in the open for all to see,” the memo states. “We have never seen it used as a bulldozer to demolish an entire city government based on technical irregularities.”
But the attorneys noted later in the memo that a judge already had “strongly signaled his skepticism” toward the city’s position.
“Given the judge’s comments in this case and the city’s lack of a solid basis to defend against this suit, it is likely the plaintiffs will prevail on the vast majority of the issues in this case, although, again, the ultimate resolution is still unclear,” the memo states.
The attorneys then observed that the plaintiffs would likely appeal any court decision that did not remove Orozco from his role as city administrator, “even if they prevail on every other aspect of their suit.”
“Continued litigation and appeals will be costly and litigation is anything but certain, but we do not see a realistic way to defend the city here without a significant compromise on behalf of the officials in Wapato,” the memo states.
A settlement offer was extended March 29 that would require the city to acknowledge insufficient notice had been provided for the July 3 and Sept. 4 meetings — and that, as a result, the city would declare actions taken at those meetings null and void.
The settlement would have required that the city administrator’s contract be declared void, along with Orozco’s appointment to the position.
It also would require a six-month study prior to the creation of a city administrator position, which would be advertised for 90 days. Additionally, the city would pay the attorney fees for the civil lawsuit open meetings case.
“It is readily apparent that Mr. Orozco is at the heart of the plaintiff’s concerns, and we believe the chances of settlement could be significantly increased — and further disruption and turmoil within city government minimized — if the city were to terminate Mr. Orozco,” the memo states.
The memo notes that the attorneys met with Alvarez-Roa in February 2019 to see if she was willing to terminate Orozco. “Mayor Alvarez-Roa declined to do so and informed us on March 4, 2019, to direct all of our communications to Mr. Orozco,” the memo observes.
The attorneys then stated: “We do not feel we can represent the city under the direction and control of City Administrator Orozco, given his substantial personal interest in this case, which is not aligned with the city’s interests.”
Should the city not be able to reach a settlement in the case, the attorneys noted they would “be left with no other choice but to withdraw from representation.”