YAKIMA, Wash. -- Unless the city of Yakima and a local attorney settle their dispute over an alleged violation of the state open-meetings law, they should prepare for a costly trial, a judge has ruled.

In an opinion issued Tuesday, Yakima County Superior Court Judge Blaine Gibson said he could not determine whether Tim Schoenrock deserves attorney fees for his work on the case without a closer look at whether members of the Yakima City Council violated the Open Public Meeting Act when they lined up support for a new budgeting policy last month.

A trial, Gibson wrote, would be risky and expensive for both sides. He urged the city and Schoenrock to settle the matter out of court.

“Of course, this suggestion assumes both parties are motivated solely by a desire to resolve the dispute quickly and economically,” Gibson said. “It does not take into account political considerations.”

Schoenrock alleges that during a study session on April 14, council members Kathy Coffey, Rick Ensey, Bill Lover and Micah Cawley violated the state’s prohibition against arranging votes outside a public meeting. His case largely rests on e-mail communication between Coffey, Ensey and Yakima Valley Business Times editor and publisher Bruce Smith.

Although the City Council rescinded the vote three weeks later, Schroenrock argued at a May 15 hearing before Gibson that he should be awarded attorney fees.

The judge agreed that Schoenrock deserves at least a full hearing and brushed aside the city’s argument that the council’s decision to rescind the budget policy rendered the case moot.

“The problem with this argument is that there’s no way for this court to know why the city rescinded the prior action, or whether it would have done so had this lawsuit not been filed,” Gibson wrote.

He added, “Maybe the city did what it did solely in an effort to avoid the expense of litigating the issue. We may never know.”

Gibson noted that the state Open Public Meetings Act makes attorney fees available as an incentive to the public to “be vigilant in protecting their right to know what public agencies are doing, and to compensate those citizens who successfully enforce those rights.”

He added, “To hold that a citizen cannot be awarded attorney fees simply because the public agency corrects its error after the lawsuit has been commenced would allow public agencies to ignore the OPMA with impunity simply by rescinding their wrongful actions when they are caught violating the Act.”

Reached for comment Tuesday, City Attorney Jeff Cutter said he could not act on Gibson’s advice to try and resolve the matter out of court without first consulting the City Council and his boss, City Manager Dick Zais.

“The ultimate decision ... that’s going to be coming from council and Dick,” he said. “It certainly will be a topic of discussion at the next council meeting,” scheduled for next Tuesday.

Schoenrock, meanwhile, said he wants to settle the case — providing the city doesn’t try to lowball him on a settlement offer.

He said his original offer to settle the case for as low as $600 has since gone up, and he predicted a trial could result in a legal bill approaching $30,000.

“Preparing for trial is expensive,” he said. “I don’t want to do it, but I will.”

Gibson said the Yakima case is similar to a 2002 case in which a member of the City Council in Spokane challenged the way his colleagues filled a vacancy on the council there.

The city rescinded its action before the case went to court, and a trial court dismissed the case. But the state Court of Appeals held that the question of whether Councilman Stephen Eugster was entitled to attorney fees could not be decided until it was determined whether the Spokane City Council had violated the state Open Public Meetings Act.

The case was sent back to Superior Court, where it was again dismissed.

Schoenrock doubted he would face a similar fate, saying he’s confident e-mail communication among Yakima council members and Smith prove the budgeting April 14 policy vote was fixed.

“With these e-mails they don’t stand a chance in trial,” he said, adding, “I’ll mop the floor with them.”

Regardless of how the case ends, the City Council indicated that it will re-adopt the new budgeting policy in the next few weeks. Known as “priorities of government” budgeting, it would give council members more influence over how city money is spent.

Ensey had signaled there would be a council vote at a study session last Tuesday, but it was deferred to a future meeting.
• Chris Bristol can be reached at 577-7748 or cbristol@yakimaherald.com.