[No. 31750-8-II. Division Two. June 7, 2005.]
THE STATE OF WASHINGTON , Respondent , v. MICHAEL WAYNE BALL , Appellant .
[1] Criminal Law - Punishment - Sentence - Life Imprisonment Without Parole - Persistent Offender Accountability Act - Prior Convictions - Proof. A convicted defendant does not have a Sixth Amendment right to have the question of persistent offender status submitted to the jury and proved beyond a reasonable doubt before the defendant may be sentenced to life imprisonment without the possibility of release under the Persistent Offender Accountability Act (RCW 9.94A.030 (32), .570). The act pertains to recidivism. A sentence of life in prison under the act is neither an exceptional sentence nor an enhancement to a sentence. For purposes of the statute, it is sufficient that the defendant's prior qualifying convictions be proved to the trial court by a preponderance of the evidence.
[2] Criminal Law - Punishment - Sentence - Life Imprisonment Without Parole - Persistent Offender Accountability Act - Validity - Vagueness. The Persistent Offender Accountability Act (RCW 9.94A.030 (32), .570), which imposes on certain offenders the punishment of life imprisonment without the possibility of release, is not unconstitutionally vague.
Nature of Action: Prosecution for four counts of child molestation.
Superior Court: The Superior Court for Lewis County, No. 03-1-00386-1, David R. Draper, J., entered a judgment of guilty on May 11, 2004. The defendant was sentenced as a persistent offender to life in prison without the possibility of release.
Court of Appeals: Holding that the defendant did not have a constitutional right to have a jury determine his persistent offender status and that the persistent offender sentencing statute is not void for vagueness, the court affirms the judgment.
Peter B. Tiller (of The Tiller Law Firm ), for appellant .
Jeremy R. Randolph , Prosecuting Attorney, and J. Andrew Toynbee , Deputy, for respondent .
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¶1 BRIDGEWATER, J . - Michael Wayne Ball was convicted of four counts of child molestation. Ball had two previous convictions for first degree statutory rape. The State requested that the trial court sentence Ball under the Persistent Offender Accountability Act (POAA). The court reviewed Ball's previous convictions and found them to be "strikes" under the Act. Ball appeals his sentence of life without the possibility of release. We hold that the POAA is neither an exceptional sentencing statute subject to a Blakely analysis nor is it an enhanced sentence statute. Blakely v. Washington , 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). The POAA is an act pertaining to recidivism. The POAA under chapter 9.94A RCW is constitutional. It permits a sentencing court to employ a preponderance standard, and the court is not required to submit the matter to a jury. We affirm.«1»
¶2 After Ball was found guilty of four counts of child molestation, the Department of Corrections filed a presentence investigation (PSI) report on March 11, 2004. The PSI listed two previous felony convictions. The first felony, first degree statutory rape, occurred in December 1982. The second felony occurred in April 1983 and was also first degree statutory rape. The trial court did not sentence Ball until 1990 for those convictions.
¶3 At sentencing, the State presented a certified copy of Ball's judgment and sentence on the rape charges from
«1»We considered In re Personal Restraint of Lavery , 154 Wn.2d 249 , 111 P.3d 837 (2005), in reaching our decision. Lavery is inapplicable to this case because Ball's prior convictions were from the state of Washington and not foreign convictions. Further, the court did not have to make any factual findings regarding the prior convictions because Ball admitted his age. The record contains Ball's statement of guilty plea with his birth date listed as October 24, 1966. Ball's prior convictions occurred in December 1982 and April 1983. In December 1982, Ball was 16 years of age. In April 1983, Ball was also 16.
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1990. Because Ball's criminal history contained two counts of statutory rape, the State sought to have Ball sentenced under the persistent offender statute. The State argued that under the persistent offender statute, Ball had, before the commission of his recent conviction, been convicted of first degree child rape. The State asked for life without the possibility of early release on counts I, II, and V and for the standard range sentence on count IV. In response, Ball argued that the persistent offender statute was unconstitutional and that the court should sentence him within the standard range. The court found that Ball was born on October 24, 1966, so at the time he committed his previous crimes he was 16. The court followed the State's recommen dation and sentenced Ball to a life term without the possibility of release.
I. Persistent Offender Accountability Act
¶4 The legislature enacted the POAA in 1994. LAWS OF 1994, ch. 1, §§ 1-3. A "[p]ersistent offender" is an offender who:
(a)(i) Has been convicted in this state of any felony considered a most serious offense; and
. . . .
(b)(i) Has been convicted of: (A) Rape in the first degree, rape of a child in the first degree, child molestation in the first degree, rape in the second degree, rape of a child in the second degree, or indecent liberties by forcible compulsion . . .
(ii) Has, before the commission of the offense under (b)(i) of this subsection, been convicted as an offender on at least one occasion, whether in this state or elsewhere, of an offense listed in (b)(i) of this subsection or any federal or out-of-state offense or offense under prior Washington law that is comparable to the offenses listed in (b)(i) of this subsection. A conviction for rape of a child in the first degree constitutes a conviction under (b)(i) of this subsection only when the offender was sixteen years of age or older when the offender committed the offense.
RCW 9.94A.030 (32). The statute defines "[m]ost serious offense" as "[a]ny felony defined under any law as a class A
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felony or criminal solicitation of or criminal conspiracy to commit a class A felony." RCW 9.94A.030 (28)(a).
¶5 Ball's 1990 convictions were for statutory rapes occurring in 1982 and 1983. Although the crime of statutory rape no longer exists, the victim age elements are similar to the current offense of child rape. Compare RCW 9A.44.073 and former RCW 9A.44.070 (1983). The new statute added the requirement relevant here that the defendant be at least 24 months older than the victim. First degree child rape is a class A felony. RCW 9A.44.073 (2).
¶6 RCW 9.94A.570 explains the sentencing guidelines for a persistent offender, stating in part:
Notwithstanding the statutory maximum sentence or any other provision of this chapter, a persistent offender shall be sentenced to a term of total confinement for life without the possibility of release.
RCW 9.94A.570 .
II. Application of Blakely to Persistent Offender Statute
[1]¶7 Ball argues that under Blakely , 542 U.S. 296, the trial court had to submit the question of whether he was a persistent offender to the jury to be found beyond a reasonable doubt.
¶8 Blakely does not apply to sentencing under the POAA. Blakely specifically was directed at exceptional sentences under RCW 9.94A.535 , "Departures from the guidelines." Blakely followed Apprendi v. New Jersey , 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), where the Supreme Court held that:
[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.
Apprendi , 530 U.S. at 490 (emphasis added).
¶9 Ours is not an exceptional sentencing situation. The "persistent offender" is not listed in RCW 9.94A.535 , but in
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RCW 9.94A.030 (32), and is found in RCW 9.94A.570 . The POAA does not increase the penalty for the current offense.
¶10 Ball also asserts that this is a sentence enhancement statute. He is wrong. RCW 9.94A.533 addresses sentence enhancements which is entitled "Adjustments to standard sentences." These enhancements concern firearm enhancements, drug enhancements (e.g. school zones), etc. Only one "adjustment" refers to prior offenses, vehicular homicide may be enhanced for prior offenses. RCW 9.94A.533 (7). The POAA is not listed or referred to in this section. We hold that it is not an enhancement of the sentence for the crime committed. Our Supreme Court has held that the POAA is a sentencing statute. State v. Thorne , 129 Wn.2d 736 , 778, 921 P.2d 514 (1996). This sentencing statute is for recidivism, and the rationale is entirely different from that of either exceptional sentences or sentence enhancements. Our Supreme Court has declined to extend Apprendi to recidivism statutes. State v. Wheeler , 145 Wn.2d 116 , 124 (2001), cert. denied , 535 U.S. 996, cert. denied sub nom. Sanford v. Washington , 535 U.S. 1037 (2002).
¶11 Wheeler answers many of the Ball's contentions. It reiterated that (1) the POAA statute was constitutional; (2) the convictions need not be charged in the information; (3) the sentence need not be submitted to a jury; and (4) it need not be proved beyond a reasonable doubt. Wheeler , 145 Wn.2d at 120 . The court also specifically held that, "[a]ll that is required by the constitution and the statute is a sentencing hearing where the trial judge decides by a preponderance of the evidence whether the prior convictions exist." Wheeler , 145 Wn.2d at 121 (citing former RCW 9.94A.110 (2000) (now recodified as RCW 9.94A.500 )). That procedure is precisely what occurred in Ball's case. Our Supreme Court reaffirmed Wheeler in State v. Smith , 150 Wn.2d 135 , 143, 75 P.3d 934 (2003), cert. denied , 541 U.S. 909 (2004).
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III. Persistent Offender Statute is Constitutional
¶12 Ball claims that the POAA is unconstitutional because (1) the Act is facially unconstitutional because it allows for the imposition of a sentence enhancement above the standard range and (2) the Act is unconstitutionally vague. We disagree with both of these arguments.
A. Facially Unconstitutional
¶13 Ball contends that the United States Supreme Court's decision in Blakely renders the POAA facially unconstitutional because it allows for the imposition of a sentence enhancement above the standard range. But the Blakely decision did not declare Washington's exceptional sentencing scheme facially invalid. Instead, the majority expressly stated that it did not declare determinate sentencing unconstitutional. Blakely , 124 S. Ct. at 2540. The Court concluded that Washington's statutory procedures for imposing an exceptional sentence when based on judicial fact-finding were invalid because the procedures violated the Sixth Amendment right to a jury trial. Blakely , 124 S. Ct. at 2540. And, as we have noted, the POAA is not an exceptional sentencing statute.
B. Unconstitutionally Vague
[2]¶14 Ball next claims that the POAA is unconstitutionally vague. But he fails to establish the elements for proving vagueness and his argument is meritless and expressly rejected in Thorne , 129 Wn.2d at 769 -70.
¶15 Affirmed.\
HUNT and VAN DEREN , JJ ., concur . No. 22761-8-III. Division Three. March 22, 2005.]
STEPHEN K. EUGSTER , Appellant , v. THE CITY OF SPOKANE , ET AL ., Respondents .
[1] Open Government - Public Meetings - Statutory Provisions - Purpose. The purpose of the Open Public Meetings Act of 1971 (chapter 42.30 RCW) is to permit the public to observe the steps employed to reach a governmental decision.
[2] Open Government - Public Meetings - Elements of Claim. A claimed violation of the Open Public Meetings Act of 1971 (chapter 42.30 RCW) requires proof (1) that members of a governing body (2) held a meeting of that body (3) where action was taken in violation of the act, and (4) that the members had knowledge the meeting violated the act.
[3] Open Government - Public Meetings - "Meeting" - Quorum - Necessity. The Open Public Meetings Act of 1971 (chapter 42.30 RCW) does not apply if the governing body of a public agency lacks a quorum.[4] Open Government - Public Meetings - Secret Ballot - What Constitutes - Announcement of Policy in Open Meeting - Consensus Noted Without Vote. The fact that a policy or proposal discussed informally between members of a governing body in settings not subject to the requirements of the Open Public Meetings Act of 1971 (chapter 42.30 RCW) is announced in an open meeting of the body without any action taken thereon does not necessarily
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constitute a secret ballot in violation of RCW 42.30.060 (2). The policy behind the prohibition against secret ballots is to prevent public officials from avoiding public scrutiny and accountability. The policy is not violated if there is no attempt to hide the identity of those members supporting or rejecting the policy or proposal.
[5] Open Government - Public Meetings - Scope - Formal Decision - Necessity. The Open Public Meetings Act of 1971 (chapter 42.30 RCW) does not necessarily require a governing body to validate a decision by a formal ballot. A governing body may make a decision by an informal procedure in a meeting open to the public if it is apparent which members of the body agree and which members disagree with the decision.
Nature of Action: A city councilmember claimed that other city councilmembers had violated the Open Public Meetings Act by agreeing on a selection process to fill a vacant council position in a nonpublic forum. The plaintiff prayed for civil penalties, injunctive relief, declaratory relief, and attorney fees. The agreed selection process was ultimately adopted by the city council by a vote conducted in a council meeting open to the public. A judgment dismissing the action was reversed, and the case was remanded by the Court of Appeals at 110 Wn. App. 212 (2002). The court held that there remained genuine issues of material fact as to whether a "meeting" took place within the meaning of the Open Public Meetings Act and whether the participants had "knowledge" that the meeting violated the act.
Superior Court: On remand, the Superior Court for Spokane County, No. 01-2-00189-7, Salvatore F. Cozza, J., on February 13, 2004, entered a judgment dismissing the action, ruling that there was no issue of fact as to whether a meeting took place by a majority of the city council in violation of the Open Public Meetings Act.
Court of Appeals: Holding that the record did not establish a violation of the Open Public Meetings Act, the court affirms the judgment.
Stephen K. Eugster , pro se.
M.D. (Mike) Williams (of Winston & Cashatt Lawyers ), for respondents.
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¶1 KURTZ, J. - When a vacancy opened on the Spokane City Council (Council), Rob Higgins, the Council President, circulated a memorandum detailing a proposal for a selection procedure. At one public meeting, Mr. Higgins asked for comments from the Council. At a second public meeting, Mr. Higgins explained the selection procedure, and then assumed that the Council agreed with his proposal because there were no objections to the proposal. Council member Stephen Eugster objected to the informal process used to adopt the selection procedure, and filed this action alleging a violation of the Open Public Meetings Act of 1971 (OPMA), chapter 42.30 RCW. When Mr. Eugster appealed the trial court's decision dismissing his complaint, this court remanded for fact finding to determine whether a "meeting" occurred for purposes of the OPMA. Eugster v. City of Spokane , 110 Wn. App. 212 , 226-27, 39 P.3d 380 (2002). On remand, the trial court once again dismissed Mr. Eugster's OPMA claim, concluding there was no issue of fact as to whether a meeting took place by a majority of the Council in violation of the OPMA. Mr. Eugster appeals. We conclude there was no violation of the OPMA and, consequently, affirm the judgment of the trial court.
FACTS
¶2 Procedural History. This case arose when Mr. Eugster filed an action against the city of Spokane (City), the Council, and Rob Higgins, Roberta Greene, Phyllis Holmes, and Steve Corker, individually. Mr. Eugster alleged a violation of the OPMA.
¶3 Initially, the trial court dismissed the suit, concluding that no meeting had occurred that resulted in a final action. Eugster , 110 Wn. App. at 220 . On appeal, we reversed and remanded for additional fact finding as to whether a meet
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ing was held in violation of the OPMA. Id. at 232. Specifically, we determined that further inquiry was required to determine whether e-mails sent to Ms. Holmes constituted a meeting for purposes of the OPMA. Id. at 224.
¶4 After remand, Mr. Eugster took the deposition of Rob Higgins, but did not request any further discovery. The City moved for summary judgment. The court concluded that no meeting was held in violation of the OPMA. Mr. Eugster appeals.
¶5 Facts. In late 2000, a position on the Council became vacant. The Spokane City Charter provides that vacancies are to be filled by a majority vote of the Council, but the charter fails to set forth a selection process. Eugster , 110 Wn. App. at 216 -17. As a first step, the Council announced the vacancy and requested that interested parties submit their applications prior to December 31, 2000.
¶6 Development of a proposal for a selection procedure. At the January 2, 2001 Council meeting, Council members discussed the vacancy during the Council's regularly scheduled legislative session. Ms. Holmes was on vacation over the holidays and was not able to attend this meeting.
¶7 After the January 2 meeting, Council President Higgins met with Ms. Greene and Mr. Corker to discuss ways to resolve issues related to the selection process. This meeting did not involve a majority of the Council members. The discussion between the three Council members resulted in the memorandum dated January 5, 2001, describing a proposed plan for a selection process to fill the Council vacancy. The proposed plan required the Council to review the 62 candidates who had submitted applications and to choose 10 names. After this initial review, a subcommittee would review these names to select a shorter list of candidates who would then be invited to formal interviews by the entire Council.
¶8 Mr. Higgins's contacts with Ms. Holmes. Prior to Ms. Holmes's departure for her vacation, she spoke with Mr. Higgins regarding the need to fill the Council vacancy; but
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these two Council members did not discuss the selection procedure because the deadline for submitting applications for the position had not passed. On December 27, Ms. Holmes spoke with Mr. Higgins by telephone regarding appointments to the subcommittee. During this conversation, Ms. Holmes mentioned that she had reviewed the applications for the vacancy and that she had started a list of those she felt should be interviewed for the position. Mr. Higgins and Ms. Holmes did not discuss the procedure for filling the vacancy.
¶9 On December 30, Ms. Holmes received an e-mail sent by the Council's administrative assistant regarding the interview schedule for individual candidates. Ms. Holmes responded by indicating that she thought the schedule was fine. Neither of these two e-mails discussed the procedure to fill the vacancy.
¶10 Significantly, Ms. Holmes did not discuss the procedure for filling the Council vacancy with Ms. Greene, Mr. Higgins, or Mr. Corker at any time prior to the January 8, 2001 meeting.
¶11 January 8 meetings. Ms. Holmes returned home from her vacation on January 7. On January 8, she attended the Council briefing session and the legislative session - both of which were open to the public.
¶12 Ms. Holmes did not arrive at the Council office until shortly before the first meeting. In those few minutes before the meeting, Ms. Holmes picked up her mail, memoranda, and written materials for both meetings. These materials included the January 5 memorandum from Mr. Higgins. Ms. Holmes did not read the January 5 memorandum describing the proposed selection process until after she arrived at the Council briefing session, which was held during the afternoon of January 8.
¶13 At the briefing session, Council President Higgins brought up the memorandum and stated: " 'I think we've resolved the differences with the majority of the Council.' " Eugster , 110 Wn. App. at 217 . The memorandum indicated
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that Council President Higgins formulated the suggested procedure in a meeting with two other Council members. Id. When questioned by Mr. Eugster as to whether the procedure was a new rule, President Higgins stated that: " 'This is a process that we're adopting for the interviews,' " and that " 'I've talked to each Council Member, the majority is in agreement that this is a process that we'll use for this selection process.' " Id. at 217-18. Mr. Eugster objected, asserting that Mr. Higgins's statements indicated that he had obtained the consent of a majority of the Council prior to the meeting. President Higgins bypassed these complaints and asked for comments from other Council members. Id. at 218.
¶14 At the January 8 legislative meeting, Mr. Eugster restated his objections. Then, Mr. Higgins explained that the procedure to be adopted for the selection process, as outlined in the January 5 memorandum, contained an error in that the Council did not intend to select the new Council member in executive session. Id. Later during this meeting, a Council member asked Mr. Higgins to explain the final process and the January 5 memorandum. Mr. Higgins repeated his understanding that the process allowed the Council to discuss the finalists in executive session, but that the vote would be conducted at a public meeting. Id.
¶15 In Mr. Higgins's deposition, he explained that he had not had any meetings with a majority of the Council, but merely assumed that all of the Council members were in agreement when they failed to object to the procedure outlined in the January 5 memorandum.
¶16 At the summary judgment hearing, Mr. Eugster admitted that there had been no meeting between Mr. Higgins, Mr. Corker, Ms. Greene, or Ms. Holmes, "by telephone, e-mail or some other method." Report of Proceedings (RP) at 8. Instead, he argued that the court must consider that a meeting took place because there was an "action." RP at 9. In his view, the Council members' failure to object to the memorandum constituted a "secret ballot." RP at 9.
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¶17 In reaching its decision granting summary judgment, the trial court determined that Mr. Higgins's assumptions after circulating the memorandum, and Ms. Holmes's silence, did not create an issue of fact that a meeting took place by a majority of the Council in violation of the OPMA.
ANALYSIS
[1, 2]¶18 "All 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 . The purpose of the OPMA is to permit the public to observe the steps employed to reach a governmental decision. Cathcart v. Andersen , 85 Wn.2d 102 , 107, 530 P.2d 313 (1975). This statute is to be liberally construed. RCW 42.30.910 . To prevail on an OPMA claim, the plaintiff must demonstrate that: (1) members of the governing body, (2) held a meeting, (3) where the governing body took action in violation of the OPMA, and (4) the members of the governing body had knowledge that the meeting violated the statute. Eugster , 110 Wn. App. at 222 (quoting Wood v. Battle Ground Sch. Dist. , 107 Wn. App. 550 , 558, 27 P.3d 1208 (2001)).
¶19 Mr. Eugster contends that the conduct of the Council, in gathering a consensus as to the selection procedure, constituted a secret ballot in violation of the OPMA. He maintains that this court has already determined that the procedure is an action for purposes of the OPMA. By making this argument, he attempts to avoid any discussion as to whether a meeting took place, and jumps ahead to the argument that this action by the Council is null and void because it was adopted by secret ballot.
¶20 In making this argument, Mr. Eugster ignores this court's prior decision. In our decision, we remanded for fact finding as to whether a meeting took place. Eugster , 110 Wn. App. at 232 . Contrary to Mr. Eugster's assertions, we did not determine that an "action" occurred; instead, we
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stated that "had a 'meeting' occurred an 'action' would have occurred." Id. at 225.
¶21 Did a meeting occur for purposes of the OPMA? Our first inquiry then is whether there is a material issue of fact as to whether a "meeting" occurred for purposes of the OPMA. It is important to note that Mr. Eugster concedes that no physical meeting took place. Instead, relying on RCW 42.30.060 (1), he makes the circular argument that a meeting must have taken place because there was an "action."
[3]¶22 RCW 42.30.060 (1) provides that "[n]o governing body of a public agency shall adopt any ordinance, resolution, rule, regulation, order, or directive , except in a meeting open to the public and then only at a meeting, the date of which is fixed by law or rule, or at a meeting of which notice has been given according to the provisions of this chapter." (Emphasis added.) No meeting takes place, and the OPMA does not apply, if the public agency lacks a quorum. See Loeffelholz v. Citizens for Leaders with Ethics & Accountability Now , 119 Wn. App. 665 , 701, 82 P.3d 1199, review denied , 152 Wn.2d 1023 (2004).
¶23 This case was remanded to the trial court for fact finding as to whether a meeting took place. Mr. Eugster failed to submit evidence demonstrating that a meeting took place. The language of RCW 42.30.060 (1) allows the governing body to take some actions without a public meeting. Here, there was no meeting, and no general consensus was obtained, prior to the January 8 public meeting. Mr. Eugster concedes this point in his reply brief, when he states: "In fact, apparently, the collective position was not arrived at or confirmed at least by the Council as a collective position until the time of the council meetings in question." Appellant's Reply Br. at 5.
[4]¶24 Did the announcement of the procedure constitute a secret ballot? Mr. Eugster next argues that the procedure announced by Mr. Higgins constituted a secret ballot, which also constituted a meeting for the purpose of
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the OPMA. To support this argument, Mr. Eugster relies on RCW 42.30.060 (2) and .020(3).
¶25 RCW 42.30.060 (2) provides that: "No governing body of a public agency at any meeting required to be open to the public shall vote by secret ballot. Any vote taken in violation of this subsection shall be null and void, and shall be considered an 'action' under this chapter." But, the Council did not take a secret ballot at a meeting that should have been open because there was no meeting between a majority of the Council prior to the open meetings held on January 8. Moreover, the meeting where Mr. Higgins announced the procedure was an open meeting where the public was able to object to the procedure and/or the process.
¶26 Mr. Eugster maintains that a collective decision was reached by secret ballot at the public legislative meeting because the announcement of the procedure - and the Council's failure to take action - constituted a secret ballot in violation of the OPMA. To support this argument, Mr. Eugster relies on In re Recall of Lakewood City Council Members , 144 Wn.2d 583 , 586-87, 30 P.3d 474 (2001).
¶27 In Lakewood , the petitioners argued that city council members violated the OPMA by meeting in a closed session with the city manager and the city attorney to discuss a lawsuit against the city council. Id. at 585. The trial court concluded that no prohibited action had been taken and that no vote had been taken. As part of its decision, the court in Lakewood noted that the city manager had the authority to make the decision even without the approval of the city council. The court also determined that the challenged discussion was protected by the attorney-client privilege. Id. at 587.
¶28 Here, Mr. Eugster attempts to distinguish Lakewood by arguing there was an action and that, unlike Lakewood , this case involves a decision that only the Council could decide. But Lakewood does not support Mr. Eugster's position.
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¶29 First, the Lakewood city council made the challenged decision in a closed session. Id. at 585. Here, no meeting took place outside the open Council meetings. Second, in Lakewood , the court rejected the argument that the council voted in executive session by failing to block the city manager's decision to join the lawsuit. Id. at 587.
¶30 Mr. Eugster argues that Mr. Higgins's announcement of the proposed selection procedure constituted a vote. But this statement took place at a public meeting and there was no tally of votes. Moreover, the policy behind the prohibition of secret ballots is to prevent public officials from avoiding public scrutiny and accountability. See Esperance v. Chesterfield Township , 89 Mich. App. 456, 463, 280 N.W.2d 559 (1979). Here, there was no attempt to hide the identity of those members supporting or rejecting the procedure.
[5]¶31 Mr. Eugster also contends that the collective position of the Council was not reached until the legislative meeting and that a violation of the OPMA occurred because no formal ballot was taken to validate the Council's decision.
¶32 This argument applies an unreasonable reading of the OPMA and its underlying policy. The OPMA's purpose is to permit citizens access to an agency's decision. A governing board may reach the type of decision made here by an informal procedure when the matter is brought up at a public meeting and it is obvious which member of the board agrees or disagrees.
¶33 In summary, there was no secret meeting and no secret ballot. Based on this record, Mr. Eugster has failed to demonstrate material facts establishing a violation of the OPMA. Mr. Eugster seeks attorney fees under RCW 42.30.120 (2). We deny Mr. Eugster's request because he has
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not prevailed on his OPMA claim. The judgment of the superior court is affirmed.\
SWEENEY , A.C.J., and BROWN, J., concur.Reconsideration denied June 21, 2005.