IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ARTHUR WEST, No. 87686-4-I
Appellant, DIVISION ONE
v. UNPUBLISHED OPINION
BURIEN CITY COUNCIL, CITY OF BURIEN, KEVIN SCHILLING, ALEX ANDRADE, LINDA AKEY, and STEPHANIE MORA,
Respondents.
BUI, J. — Arthur West sued the City of Burien, the Burien City Council,
and several of its individual members alleging a violation of Washington’s Open
Public Meetings Act of 1971 (OPMA), ch. 42.30 RCW. West appeals the
summary judgment dismissal of his lawsuit and the trial court’s order awarding
attorney fees against him.
The trial court ruled, as a matter of law, the “press conference” at issue
was not a meeting subject to the OPMA’s notice requirements. Because this
ruling is inconsistent with the broad terms of the statute, the trial court erred in
dismissing West’s lawsuit. We reverse the trial court’s order of summary
judgment, vacate its order awarding attorney fees and the judgment, and
remand.
FACTS
The underlying events in this case involve a dispute between the City of
Burien and King County. In March 2024, the Burien City Council passed No. 87686-4-0-I/2
Ordinance 832, an anti-camping ordinance. The King County Sherriff’s Office
took the position that the ordinance was unconstitutional and refused to enforce
it.
On April 25, 2024, Burien’s mayor and Council member, Kevin Schilling,
convened a “press conference” to address the impact of the County’s decision.
Four hours before the event, Mayor Schilling sent an e-mail message to 15
individuals affiliated with several media outlets, inviting them to attend. The
subject line of the message was, “City of Burien Mayor, Councilmember, and
Business Owner Press Conference.” According to the Mayor’s message, the
purpose of gathering was to “discuss” the King County Sheriff’s Office’s refusal to
enforce Burien’s recently enacted ordinance in violation of the County’s
obligation under the interlocal agreement to provide law enforcement services to
Burien. The announcement stated local business owners would speak about loss
of revenue and property damage related to encampments in Burien’s business
district and participants would be “discussing next steps that we see as a
community.” According to the e-mail, “Mayor Schilling, Councilmembers . . .
business owners impacted by encampments” would be in attendance.
At the appointed time, the Mayor and three other council members
convened with members of the press, business owners, and others at the Burien
City Hall. 1 At the outset, Mayor Schilling made a statement at the podium,
asserting the County was “usurping” the council’s legislative authority and urging
the County to “come to the table” to negotiate the dispute. The Mayor then invited
1 The declarations of the mayor and the three council members state the location was the
library. Ultimately, the location is not crucial to the issue on appeal. 2 No. 87686-4-0-I/3
several community members and business owners to describe their experiences
and share their concerns about the lack of enforcement of the camping ban.
Finally, the Mayor and other participants responded to questions from the press.
At least two local media outlets recorded the conference, which lasted
approximately 35 minutes. 2
The next day, Arthur West, representing himself, filed a lawsuit against the
City of Burien, the Burien City Council, and individual council members
(collectively, the City). West’s complaint alleged the City violated the OPMA
because four council members, a quorum, met and took action on official council
business without providing proper notice and posting an agenda, as required by
the statute. 3 West sought declaratory judgment, the assessment of civil penalties,
fees, and costs. 4 See RCW 42.30.030(1) (authorizing $500 civil penalty against
an individual member of a governmental body who knowingly violates the
OPMA); RCW 42.30.120(4) (a person who prevails against a public agency in a
2 The record includes two recorded versions of the press conference, a longer version with a KING 5 News logo that appears to be unedited, but omits the first minute, KING 5 SEATTLE, Burien Businesses Speak Out on Camping Ban Enforcement, (YouTube, Apr. 25, 2024) https://www.youtube.com/watch?v-yuD1cgblOfo, and a shorter, apparently edited version, with a South King Media logo, South King Media, Mayor Kevin Schilling Press Conference Burien City Hall, (YouTube, April 25, 2024) https://youtube.com/watch?v=-DPLoDtuevM. 3 City of Burien residents voted in 1992 to incorporate as a noncharter code city under a
council-manager form of government. See https://www.burienwa.gov/news_events/city_news room/news_announcements/celebrating_30th_anniversary_of_incorporation. The City is governed by a seven-member city council and the council selects the mayor and deputy mayor from among its members. See https://www.burienwa.gov/city_hall/city_council; see also RCW 35A.13.010 (size of council for noncharter or charter code city that elects a mayor-council form of government depends on the number of residents; council consists of seven members if residents exceed 2,500). 4 Four former Burien council members filed a motion to intervene in the lawsuit, but the
court did not rule on the motion as it was not noted for a hearing. West later submitted declarations of the former council members, each expressing the opinion that the April 25, 2024 event was a meeting subject to the OPMA, in support of reconsideration. 3 No. 87686-4-0-I/4
claim under the OPMA “shall be awarded all costs, including reasonable
attorneys’ fees”).
The City filed a motion for summary judgment. The City argued there was
no quorum of council at the April 25 event because one council member, Alex
Andrade, attended solely in her personal capacity as a small business owner and
another, Linda Akey, attended for only 15 minutes. Even if there was a quorum,
the City claimed council members did not collectively intend to meet and transact
“official business” or receive public testimony. Accordingly, the City argued, as a
matter of law, the press conference was not subject to the requirements of the
OPMA.
In response, West argued (1) the label “press conference” was not
dispositive, (2) the City’s interpretation of the OPMA was overly narrow, and (3)
the discussion about the ordinance and the City’s authority to exercise its police
powers was related to official City business. West also moved to strike
declaration testimony submitted by the City (from the mayor and Council
members Andrade and Akey) and requested CR 11 sanctions. West identified a
discrepancy between Council member Akey’s testimony and video footage
showing she was present for nearly the entire event. In response, the City
acknowledged that Akey underestimated the duration of her attendance but
claimed there was no basis to strike or for sanctions because West did not
challenge Akey’s declaration in his opposition to the City’s motion for summary
judgment.
4 No. 87686-4-0-I/5
At the hearing on the City’s motion, the trial court orally denied the motion
to strike and for sanctions. After considering the arguments of both parties, the
court granted the City’s motion for summary judgment and entered an order
dismissing West’s complaint with prejudice.
The City then moved for attorney fees under RCW 42.30,120(4), which
provides for fees under the frivolous lawsuit statute, RCW 4.84.185, when a
public agency prevails on an OPMA claim and the lawsuit is “frivolous and
advanced without reasonable cause.” The City characterized West as a “serial
litigant” and asserted the lawsuit was “contrary to all relevant authority” and
without evidentiary support.
West sought reconsideration of the ruling on summary judgment and
opposed the motion for attorney fees. West also resubmitted his motion to strike
and for sanctions related to the council members’ declarations supporting the
City’s motion. The trial court denied reconsideration and West’s requests for
sanctions, and granted the City’s request for attorney fees, finding West’s lawsuit
was “frivolous and advanced without reasonable cause.”
West moved to reconsider the order awarding fees. He also filed a
declaration pointing to the City’s passage of an amended anti-camping ordinance
in January 2025 as new evidence that the discussion at the April 25, 2024 event
was related to evolving issues likely to come before the council, and did, in fact,
come before the council again, and not solely related to prior, completed council
business. The trial court declined to reconsider the award of attorney fees.
5 No. 87686-4-0-I/6
After the City provided the amount of its request and billing records, West
objected to the amount, $49,909.50, as excessive. The trial court applied a
modest reduction to the fees requested by the City and awarded fees in the
amount of $48,804.50.
West timely appealed.
ANALYSIS
West challenges the trial court’s order granting summary judgment in favor
of the City and its orders awarding fees against him. The Washington Coalition
for Open Government has filed amicus briefing in support of West’s challenge to
the trial court’s award of fees.
Standard of Review
We review a summary judgment ruling de novo. Martin v. Gonzaga Univ.,
191 Wn.2d 712, 722, 425 P.3d 837 (2018). Summary judgment is proper if there
are no genuine issues of material fact and the moving party is entitled to
judgment as a matter of law. CR 56(c). When reviewing a summary judgment
order, this court engages in the same inquiry as the trial court, viewing the facts
and all reasonable inferences in the light most favorable to the nonmoving party.
Lunsford v. Saberhagen Holdings, Inc., 166 Wn.2d 264, 270, 208 P.3d 1092
(2009). On review, this court does not weigh evidence, assess credibility,
consider the likelihood that the evidence will prove true, or otherwise resolve
issues of material fact. TracFone, Inc. v. City of Renton, 30 Wn. App. 2d 870,
876, 547 P.3d 902, review denied, 3 Wn. 3d 1030, 559 P.3d 494 (2024).
6 No. 87686-4-0-I/7
We review a trial court’s decision on a motion to strike for an abuse of
discretion. Farmer v. Davis, 161 Wn. App. 420, 431, 250 P.3d 138 (2011). And
we review an attorney fee award, based on a determination of frivolousness
under RCW 4.84.185, for abuse of discretion. Curhan v. Chelan County, 156 Wn.
App. 30, 37, 230 P.3d 1083 (2010). A court abuses its discretion when its
decision is manifestly unreasonable or is exercised on untenable grounds or for
untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d
775 (1971).
OPMA
West claims the trial court erred in ruling, as a matter of law, the City did
not violate the OPMA. According to West, because a majority of the council
gathered and took “action” under the OPMA on April 25, 2024, the City was
required to comply with the statute’s notice requirements. See RCW 42.30.020(3)
(defining “action”); RCW 42.30.080 (providing notice and timing requirements for
special meetings).
The OPMA is “Washington’s comprehensive transparency statute.”
Columbia Riverkeeper v. Port of Vancouver USA, 188 Wn.2d 421, 434, 395 P.3d
1031 (2017). “OPMA contains a strongly worded statement of purpose: ‘The
legislature finds and declares that all public commissions, boards, councils,
committees, subcommittees, departments, divisions, offices, and all other public
agencies of this state and subdivisions thereof exist to aid in the conduct of the
people’s business. It is the intent of this chapter that their actions be taken openly
and that their deliberations be conducted openly.’ ” Citizens Alliance for Prop.
7 No. 87686-4-0-I/8
Rts. Legal Fund v. San Juan County, 181 Wn. App. 538, 543, 326 P.3d 730
(2014) (quoting RCW 42.30.010). To achieve this goal, the OPMA requires, with
few exceptions, “[a]ll meetings of the governing body of a public agency shall be
open and public and all persons shall be permitted to attend any meeting of the
governing body of a public agency.” RCW 42.30.030.
Our courts construe the OPMA liberally to accomplish its purpose. Eugster
v. City of Spokane, 110 Wn. App. 212, 222, 39 P.3d 380 (2002); RCW 42.30.910
(“The purposes of this chapter are hereby declared remedial and shall be liberally
construed.”). Remedies for violating the OPMA include mandamus or injunction
as provided in RCW 42.30.130, voidance of actions as provided in RCW
42.30.060, and recoupment of costs and reasonable attorney fees as provided in
RCW 42.30.120(4). Zink v. City of Mesa, 17 Wn. App. 2d 701, 707-08, 487 P.3d
902 (2021).
“In construing statutes, we seek to effectuate the legislative intent, which
we discern ‘from the statutory text as a whole, interpreted in terms of the general
object and purpose of the legislation.’ ” Wood v. Battle Ground Sch. Dist., 107
Wn. App. 550, 558, 27 P.3d 1208 (2001) (quoting Group Health Coop. of Puget
Sound, Inc. v. Dep’t of Revenue, 106 Wn.2d 391, 401, 722 P.2d 787 (1986)). We
“construe a statute ‘so that all the language used is given effect, with no portion
rendered meaningless or superfluous.’ ” Seattle City Light v. Swanson, 193 Wn.
App. 795, 810, 373 P.3d 342 (2016) (internal quotation marks omitted) (quoting
Rapid Settlements, Ltd., v. Symetra Life Ins. Co., 134 Wn. App. 329, 332, 139
P.3d 411 (2006)). Statutory construction is informed by common sense and we
8 No. 87686-4-0-I/9
strive to avoid absurd results. Linville v. Dep’t of Ret. Sys., 11 Wn. App. 2d 316,
321, 452 P.3d 1269 (2019).
A “meeting” is subject to the OPMA when a majority of the governing body
meets and takes “action.” Citizens Alliance, 184 Wn.2d 428,442-43, 359 P.3d
753 (2015) (quoting RCW 42.30.020(4)). However, “the OPMA does not actually
define what a ‘meeting’ itself is.” Citizens Alliance, 184 Wn.2d at 443. Relying on
Black’s Law Dictionary 1131 (10th ed. 2014) as a “useful definition” in the context
of governing entities, our Supreme Court determined that, for a gathering to be a
meeting, its purpose must be “to discuss or act on matters” in which the
attendees have a “common interest” relating to “the official business of the
governing body.” Citizens Alliance, 184 Wn.2d at 443. And the OPMA expressly
defines “action” as “the transaction of the official business of a public agency by a
governing body including but not limited to receipt of public testimony,
deliberations, discussions, considerations, reviews, evaluations, and final
actions.” RCW 42.30.020(3). The statute allows governing bodies to travel
together or gather for purposes other than regular or special meetings, so long as
they “take no action” as defined in the statute. RCW 42.30.070.
To prevail on a claim for civil penalties under RCW 42.30.120(1), West
was required to show “(1) that a member of a governing body (2) attended a
meeting of that body (3) where action was taken in violation of OPMA and (4) the
member had knowledge that the meeting violated OPMA.” Citizens Alliance, 181
Wn. App. at 543-44. For purposes of his claims for declaratory judgment and
costs, West needed only to establish the first three elements. See Eugster, 110
9 No. 87686-4-0-I/10
Wn. App. at 226 (“while the knowledge element is required to impose the civil
penalty, it is not a necessary element for recovering attorney fees”); Citizens
Alliance, 181 Wn. App. at 544 n.6 (“it is not appropriate to graft a knowledge
requirement onto the test for overcoming summary judgment where civil
penalties are not at issue.”).
West contends the trial court erred in concluding there was no meeting
subject to the OPMA when the evidence demonstrated a quorum of council (1)
physically gathered, (2) engaged in discussion about an ordinance involving the
exercise of municipal police powers, and (3) received public testimony. We
agree. The City does not dispute that a majority of the council was present on
April 25, 2024. But, according to the City, because the event was a “press
conference” intended to publicize an issue of concern to the community, it was
not a “meeting” under the OPMA. The City further claims the council took no
“action” on April 25 because council members did not directly discuss issues with
each other. And while the discussion touched on the City’s ordinance, because
the council had already voted on that measure, the City argues it did not transact
official council business by discussing the ordinance after the fact. The City also
maintains the council did not receive “public testimony” for purposes of the
statute because council members merely passively received information. And
finally, the City contends there was no meeting or action because council
members lacked the “collective intent to deliberate and/or discuss” any council
business. See Wood, 107 Wn. App. at 566.
10 No. 87686-4-0-I/11
The statute does not suggest designating the event as a “press
conference” precludes application of the OPMA. It is evident from the statements
of the mayor and others that the event was intended to publicize the impasse
with the County and influence the County to change its position on the
enforcement of the anti-camping ordinance passed by the council.
Notwithstanding that unmistakable purpose, to determine if the council took
“action,” within the meaning of the OPMA, the statute directs us to consider
whether the circumstances fell within the “transaction of the official business” of
[the council]. RCW 42.30.020(3). The City’s contention that it did not transact
official council business by gathering with the press and members of the public to
encourage the County to negotiate and advocate for implementation of its
ordinance appears to be an unduly restrictive reading of the statute. 5 See
Eugster, 110 Wn. App. at 222; RCW 42.30.910.
Although the statute does not mention collectively publicizing, advocating,
or encouraging cooperation with its legislative efforts, the OPMA “expansively”
defines “action” and its list of examples of how a governing body may take action
is expressly non-exclusive. Egan v. City of Seattle, 14 Wn. App.2d 594, 614, 471
P.3d 899 (2020). The City acknowledges a governing body may take action by
engaging in “discussion.” And here, the Mayor specifically described the April 25
event as a forum for “discussion” about the County’s stance, its obligations, and
5 According to the City, courts in other jurisdictions have “uniformly” concluded that press conferences are not meetings that violate open meeting laws. However, the City cites only a case construing an Ohio public meeting law with different, narrower language, see Holeski v. Lawrence, 85 Ohio App. 3d 824 (1993), abrogated on other grounds by Ames v. Rootstown Township Bd of Trustees, 2019-Ohio-5412, and a case construing an Alabama public meeting law that generally excludes press conferences, see Swindle v. Remington, 291 So.3d 439 (Ala. Sup. Ct. 2019). These authorities do not aid our interpretation of the statutory language at issue. 11 No. 87686-4-0-I/12
the “next steps” to address the situation. The meeting included substantive
exchanges, primarily between members of the press and the Mayor, with
additional input from business owners and another council member. There was
specific discussion about whether the City might end the standoff by reverting to
the law that Ordinance 832 replaced. And the City did eventually adopt a revised
ordinance. Nothing in the statute limits “discussion” to scenarios where all
members of the governing body who are present contribute or requires members
to directly address each other. And the evidence supports an inference that the
council engaged in discussion that informed later decision-making. See, e.g.,
2006 Op. Att’y Gen. No. 6, at 2, 6 (the OPMA applies to deliberation or discussion
of issues a governing body may eventually decide).
The City also claims the council did not take action by receiving “public
testimony” within the meaning of the OPMA because community members
addressed their comments only to the press. And, relying on Wood, 107 Wn.
App. at 566, and City of Seattle v. Kaseburg, 13 Wn. App.2d 322. 467 P.3d 115
(2018), the City claims the OPMA required council members to do more than
hear public comments in order to take action by the receipt of public testimony.
But neither Wood nor Kaseburg involved analogous facts or addressed the
receipt of public testimony. Wood involved the question of whether
communications may constitute a meeting under the OPMA without physical
presence. Wood, 107 Wn. App. at 556, 565-66 (e-mail exchanges involving a
quorum of the Board relating to “Board business” were prima facie evidence that
6 https://www.atg.gov/ago-opinions/applicability-open-public-meetings-act-when-quorum-
members-governing-body-are-present. 12 No. 87686-4-0-I/13
a meeting occurred). And in Kaseburg, we determined contact by e-mail between
individual council members and members of the community did not constitute a
meeting of council. Kaseburg, 13 Wn. App. 2d at 334.
In discussing the OPMA’s applicability, this court in both cases
distinguished active exchanges of information from mere “passive receipt” of
information. Citizens Alliance, 184 Wn.2d at 444; Wood, 107 Wn. App. at 566.
But the factual context of electronic communications and other “one-way forms of
communication” was critical to that distinction. Citizens Alliance, 184 Wn.2d at
444. The distinction is relevant to electronic communications which may be
widely disseminated and can be received without being read or considered. On
the other hand, our courts have not addressed the receipt of “public testimony”
under RCW 42.30.020(3) or discussed the factual aspects that may be relevant.
In short, no authority supports the position that a governing body does not take
action by receiving public testimony when a majority of its members are
physically present when community members give public statements on the
subject of legislation enacted by that body.
Finally, pointing to the declarations in the record of three of the council
members present on April 25, the City claims it is “undisputed” that the council
lacked the requisite intent to meet and conduct official council business.
According to Mayor Schilling:
I did not intend for the press conference to be a public meeting or a City Council meeting. I similarly did not intend to transact any official City business at the press conference. The purpose of the press conference was to speak to the press about the King County Sheriff’s Office’s decision not to enforce Burien Ordinance No. 832, which Ordinance the City Council already had adopted. Thus, any City Council action related to this issue 13 No. 87686-4-0-I/14
already had been completed the month prior and the intent of the press conference was to ask the King County Sheriff’s Office to take action consistent with the City Council’s ordinance.
Council member Andrade maintained she attended, “as an affected Burien
business owner and member and representative of the Spanish speaking
businesses and community” and her only communication about the event was
with Mayor Schilling, who “let [her] know there would be a press conference.”
Similarly, Council member Akey said Mayor Schilling “told [her] there would be a
press conference . . . to allow Burien business owners to voice their concerns
about King County’s refusal to enforce Burien laws to the media.” She denied
participation in planning the event.
These declarations do not dispel the evidence that a quorum of the council
intended to gather in one place to discuss and publicize the County’s response to
Burien’s legislation and hear community members’ concerns. Mayor Schilling’s
declaration merely states the basis for his opinion that the gathering he initiated
was not subject to the requirements of the OPMA. The declarations, together
with the invitation to the press and video footage, create a reasonable inference
that council members intended to meet collectively, were present as council
members (even if they attended in more than one capacity), and were apprised
that the event was related to the official council business.
In sum, because the evidence was sufficient to support West’s claim of a
violation of the OPMA and the City failed to establish an entitlement to judgment
as a matter of law, we reverse the order granting summary judgment. As the
award of attorney fees was premised on the summary judgment dismissal of
West’s lawsuit, we also vacate the order awarding attorney fees and judgment.
14 No. 87686-4-0-I/15
Although we reverse the trial court’s order on other grounds, we exercise
our discretion to address West’s challenge to the denial of his motion to strike the
council members’ declarations supporting the City’s motion for summary
judgment. It appears reasonably likely the issue will arise on remand because the
challenged declarations may be relevant to knowledge and whether the civil
penalties West seeks under RCW 43.20.120(1) are appropriate. See McFarland
v. Tompkins, 34 Wn. App.2d 280, 320-21, 567 P.3d 1128 (2025) (genuine issues
of material fact existed as to knowledge, despite declarations of each board
member denying knowledge, because of circumstantial evidence in the record
contradicting the claimed lack of knowledge).
West argues the court was required to strike Council member Akey’s
declaration because her statement about the duration of her attendance was
untruthful, as evidenced by video footage. West similarly claims the video
footage contradicts some of the declaration testimony of Council members
Andrade and Mayor Schilling. But these arguments go to the weight and
persuasiveness of the declarations, not their admissibility.
West relies on Beckman v. Dep’t of Social & Health Servs., 102 Wn. App.
687, 11 P.3d 313 (2000), and In re Pers. Restraint of Fero, 190 Wn2d 1, 409
P.3d 214 (2018). Beckman involved the application of RAP 18.8, authorizing an
extension of time to file a notice of appeal in “extraordinary circumstances.”
Beckman, 102 Wn. App. at 693. Fero involved collateral review of a criminal
conviction and whether declarations addressing changes in the medical
community’s understanding of head trauma would probably change the result of
15 No. 87686-4-0-I/16
trial and qualify as newly discovered evidence. Fero, 190 Wn.2d at 17, 22.
Neither case holds or suggests the trial court must strike declaration testimony
that is arguably inconsistent with other evidence. We discern no abuse of the trial
court’s discretion in its evidentiary ruling.
Attorney Fees on Appeal
The City seeks attorney fees on appeal citing RCW 42.30.120(4) and RAP
18.9, arguing West’s appeal is frivolous and sanctionable. West prevails on
appeal as to the two primary issues he raised. We deny the City’s request for
attorney fees.
Conclusion
We reverse the order on summary judgment, vacate the order awarding
attorney fees and the judgment awarding attorney fees, and remand for further
proceedings.
WE CONCUR: