In its second meeting of the year, Bainbridge City Council ended its cordial honeymoon period and sparred throughout the evening over a performance review of City Manager Brenda Bauer.

It became apparent that a discussion about Bauer’s position was part of an executive session after the agenda item was added Monday, then it was argued during Wednesday’s regular meeting whether or not such discussion was executive session material.

The debate lingered throughout the meeting, continually popping up across various topics, drawing lines and reflecting upon the changing dynamics of the new council and the possible change in the city’s administration.

The item in question pertained to the “Review Performance of an Employee RCW 42.30.110(1)(g),” which deals with evaluating applicants for public employment and handling issues with current public employees, including disciplining or discharging employees.

“Quite frankly if this is what we want to talk about, let’s get it out on the table whether it’s in here or it’s in (executive session),” Council or Kirsten Hytopoulos said. “We all had a very clear conversation (at Sunday’s retreat) about the fact we are headed down a path to create performance measures for Brenda, finally, that we are legitimate so we can measure her performance (as city manager). And then, within one day, this is added to the agenda.”

Early in the regular meeting, Council Member Bob Scales addressed the matter by asking who added it to the agenda and what their intentions were.

New Council Member David Ward said he added it to the agenda but felt that it was inappropriate to discuss the item outside of executive session. Scales again brought the matter forth when he inquired whether or not council members had discussed the agenda item with the city attorney to determine if it was appropriate for executive session.

“Not everything is eligible for executive session and council members can’t on their own decide what is an executive session topic and what is not,” Scales said. “The only person who is qualified to determine whether a particular topic is subject to an executive session is the city attorney so I would like to know whether Council Member Ward, since he won’t tell council or the public what this item is, has consulted with the city attorney to determine if this is executive session material.”

City Attorney Will Patton was not in attendance during the first part of the meeting that included discussion about the agenda item, but arrived later and attended the executive session.

Ward said that he did not bring the item to the city attorney and assured that he had confirmed that a review by the city attorney is not required nor mandated by law. He further held his ground and did not discuss the item while on the dais. Items such as litigation, real estate issues and performance reviews are protected under law as executive session agendas and are not to be discussed by council members in public.

Scales further expressed his objection to the performance review, saying he would not attend the executive session until he could speak with the city’s attorney, fearing that they would violate the state’s open public meetings act.

In response, Council Member Debbi Lester read from the city’s governance manual and related material from the Municipal Research Service Center, which she said offers advice to citizens and council members. She noted that the city attorney may have a conflict of interest commenting on the matter. The city attorney is managed by the city manager.

“The city attorney represents the city and the issue of our liability with regard to this question is the city’s liability,” Hytopoulos said. “And he is not Brenda’s personal attorney or our personal attorney. He is to advise us in whether we are conducting procedure in accordance with state law. So I too would like to hear from the city attorney.”

Scales again addressed his objection noting that the MRSC does not represent the city and only the city attorney has that role as part of his argument for not discussing the performance review.

“With all due respect Council Member Lester, MSRC does not represent the city, they do not provide legal advice to the city, they are a general advisory service for municipal governments,” Scales said. “We have a city attorney who represents us, and represents the city. If you do not use him, that is negligent, that is negligent.”

The argument also spilled out into the audience as a number of community members spoke during time for public comment.

“I left (the council retreat on Sunday) with a sense of optimism that we could continue to build on the recent successes,” said  Bob Fortner. “That optimism was shattered a mere 24 hours later when I learned unbeknownst to fellow council members, Mayor Lester, and Council Member David Ward added a surprise agenda item to the executive session – a performance review of the city manager.”

Lester said that adding items to the agenda is nothing new and has been done in the past.

Council Member Steve Bonkowski interjected and said the city attorney would attend the executive session and could weigh in on the discussion.

“If it’s not appropriate for executive session it doesn’t get discussed, but if it is appropriate it gets discussed,” Bonkowski said. “So I don’t see that there is a conflict between whether it should or shouldn’t be discussed.”

Council adjourned and entered executive session at the conclusion of the meeting, with the agenda item for an employee performance review intact. Lester said that no decisions were expected to be made and sent the city clerk and duty police officer home when they went into executive session.

On Thursday morning, Lester said the item was approved by the city attorney for discussion during executive session.

“There are ongoing discussions in executive session and no action has been taken,” Ward also said Thursday.