Matt Ready

Dear Jefferson Healthcare Commissioners:

Jefferson Healthcare’s future is crucial to the welfare of all residents.

If you agree with that statement, please stop discussing the possible alliance with Olympic Medical Center behind closed doors with or without an attorney.

It’s we, the “peeps” as CEO Mike Glenn called the people of Jefferson County during a recent board meeting, you need to be talking to in public meetings.

It’s not just the right thing to do; there is no legal exemption under the state Open Public Meeting Act to allow you do go into a closed-door meeting to discuss alliances or mergers or affiliations.

That’s not my opinion. It’s the opinion of Allied Law Group, which represents a raft of newspapers, broadcast media, nonprofits and individuals like me who care about open government.

After the March 26 board meeting in which chair Jill Buhler-Rienstra silenced commissioner Matt Ready, scolding him as if he were a naughty child for wanting to talk about this issue, I reached out to attorney Michele Earl-Hubbard of Allied Law Group. I know her professionally, not personally. Her advice when I was working on some controversial stories years ago were invaluable.  She made me think about every word.

To be clear, I did not ask her to come to any conclusion but her own. I did pay for her opinion.

 I provided her with the board agendas, access to board minutes and Mr. Ready’s PowerPoint on the OMR request for proposals for an alliance that Ready had made public on his website.

The following is verbatim what she wrote in response to my request for her analysis:

“First, no, the agency absolutely cannot legally use the “real estate” or “potential litigation” Executive Session grounds to hold an ES to discuss creation of this new entity or merging with other entities. If they merge and get around to selling off surplus properties or buying new ones, they can have an ES for that narrow discussion, but not for what they are discussing now.  The fact someone might sue them someday to stop some action they are considering taking – liking forming this entity, etc. – is not an appropriate grounds for an ES.  They can have narrow ES’s to discuss with legal counsel and get legal advice under 42.30.110(1)(i) but only in very specific circumstances (quoted below):

(i) To discuss with legal counsel representing the agency matters relating to agency enforcement actions, or to discuss with legal counsel representing the agency litigation or potential litigation to which the agency, the governing body, or a member acting in an official capacity is, or is likely to become, a party, when public knowledge regarding the discussion is likely to result in an adverse legal or financial consequence to the agency.

This subsection (1)(i) does not permit a governing body to hold an executive session solely because an attorney representing the agency is present. For purposes of this subsection (1)(i), “potential litigation” means matters protected by RPC 1.6 or RCW 5.60.060(2)(a) concerning:

(i) Litigation that has been specifically threatened to which the agency, the governing body, or a member acting in an official capacity is, or is likely to become, a party;

(ii) Litigation that the agency reasonably believes may be commenced by or against the agency, the governing body, or a member acting in an official capacity; or

(iii) Litigation or legal risks of a proposed action or current practice that the agency has identified when public discussion of the litigation or legal risks is likely to result in an adverse legal or financial consequence to the agency;

The only one that might even remotely apply – down the road – would be (1)(iii) – but they have to show public discussion of the legal risks “is likely to result in an adverse legal or financial consequence to the agency”.  There is no current litigation.  So they have to be saying they worry there could be legal risks of a proposed action – AND that there will be adverse legal or financial consequences to the agency of public discussion of the legal risks.  That is rare and very narrow.  And it cannot cover ES to discuss the idea with people other than the lawyer – and anyone from the other groups present defeats the alleged attorney client privileged nature of the ES this exemption is meant to cover.  So no they are breaking the law meeting in secret under either of those two exemptions.

They also cannot hold an ES without saying which subpart of Section 110 covers it.  The reason they have to give the reason is so they think hard whether there is an ES ground that allows it.  If they cannot even figure it out to put it on the agenda, they are showing they have not thought that through.  And there probably isn’t such a ground.

The Commissioner who leaked the materials – if he is sanctioned – can perhaps file a lawsuit appealing it.  Anyone who participated in that ES with knowledge it violated the OPMA can be sued for violating the OPMA and individually fined.  Any ethics rule that punishes someone for exposing illegal actions should be void for public policy reasons and unenforceable.

Anyone could sue this entity and all the Commissioners for that one ES OPMA violation.”

That last line is not my conclusion; it is the conclusion of an attorney who has successfully sued many public agencies over the course of many years.

I have no interest in suing Jefferson Healthcare. So please do not take this as a threat so that you can discuss it with your attorney. It’s not.

What I am asking is that is that you all think before you go into executive session.

Commissioner Ready wasn’t throwing you “under the bus” as one commissioner implied when he tried to have a conversation with you all about the alliance. He wasn’t trying to “libel and slander” you as another stated.

He was telling you the truth. And you shot him down without thinking about it.

Commissioner Kees Kolff came close to realizing the subject matter was in question for a closed session. Then he went with the majority and dismissed Mr. Ready.

This issue is huge. It has serious implications for the delivery of healthcare across the Olympic Peninsula.

And frankly, as someone who has listened to this board and values the breadth of knowledge you all have, and who also understands the magnitude of the healthcare situation today, it sounds like an alliance has potential merit. Partnerships like the one proposed could be a solution for the dire situation we face in healthcare today.

It will not be a solution if it’s done in private and without rigorous public consideration – not between high paid CEOs, not between private companies or Chicago-based specialty groups, not between “select” commissioners but with all parties involved onboard for a public discussion about the survival of our vital healthcare infrastructure.

And stop meeting in executive session on this. It’s not legal.

Thank you.

Allison Arthur

Community member and OPMA advocate