Dec. 09 -- The budget discussion between Sheriff John Turner and the three county commissioners got heated this week when it veered off course.

Instead of focusing on the specifics of the budget, the meeting became a debate over whether commissioners Gregg Loney, Greg Tompkins and Perry Dozier should meet individually with Turner and his command staff to discuss and develop strategic plans for the Sheriff's Office.

It is simply not the job of the county commissioners to help develop strategic plans for the Sheriff's Office. That is the sole responsibility of the county sheriff, who is directly elected by the people of Walla Walla County.

The Board of County Commissioners is a legislative body. The commissioners are elected to oversee the overall operation of the county, which includes establishing the budget.

The three commissioners, however, are not the sheriff's direct boss. The people are the sheriff's boss.

The expectation is that the sheriff oversees the Sheriff's Office and establishes polices and develops strategic plans. The sheriff makes a budget request to the commissioners, who then allocate funding based on those plans as well as other factors such as the needs of other county offices and how much money is available.

Holding private meetings on a regular basis between individual commissioners and the sheriff is unnecessary.

That's the case whether it is the sheriff or any of the other independently elected county officials. The auditor does-n't develop strategy with the commissioners on how to run an election nor does the coroner develop with commis-sioners policies regarding autopsies.

The three commissioners said they would be willing to discuss various issues with Turner in a public meeting that is recorded -- just like all commission meetings.

"That way we all hear the same thing and they are recorded for the public to listen to, and then I would be willing to do that. And I've told the sheriff that, too," Tompkins said.

Exactly. The people's business should always be done in public.

Turner, however, has concerns about meeting in public.

"You know that plan doesn't work because when it comes to tactics and how we deploy people (and) when we talk about the tremendous civil and safety liability issues to the office, that's not for the public," he said.

It was suggested by a commissioner that when sensitive topics come up the commissioners and sheriff could meet behind closed doors in an executive session with their attorney.

Absolutely not. We do not believe that would be legal under the state's Open Public Meetings Act. The law nar-rowly defines the subjects for which meetings can be closed, things such as personnel matters and pending litigation. Strategic plans for law enforcement do not apply.

Developing strategic plans is best done by the sheriff and his command staff. And after those plans are developed the commissioners -- in public -- provide oversight through the budget process.
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Visit Walla Walla Union-Bulletin (Walla Walla, Wash.) at union-bulletin.com.

Controversy has swirled around the Everett School Board all year over openness and transparency.

The school board now plans to hold a forum early next year to have outside experts discuss issues such as the state Open Public Meetings Act and the steps involved in getting records from government agencies.

Ed Petersen, school board president, suggested during a meeting Tuesday night that the school district contact a nonpartisan group, such as the League of Women Voters. The group could help select the experts who would speak on the state's open-government laws.

The goal is to have the event in January or February, Petersen said. It would give the public an opportunity to talk about openness in government.

"The benefits we're looking for are a better informed community and information from those who attend to help us in our operations," he said.

The idea for the forum was first proposed in September, as the School Board was wracked with controversy following a scuffle among three members, Petersen, Kristie Dutton and Jessica Olson.

Olson has often been at odds with other board members since being elected in 2009. Fellow board members have censured her twice this year.

At the same meeting that the school board was considering Olson's second censure, planner Reid Shockey of Everett suggested the special public meeting, which would include a panel of experts discussing open government and the state Open Public Meetings Act.

In other business during Tuesday's School Board meeting, board members discussed whether to grant a request from Olson to see unredacted copies of legal invoices or bills since June from a Seattle law firm which advises the school district.

Board member Jeff Russell said he was concerned about Olson's request to view unredacted invoices because they contain private and confidential information about staff, students and families.

"We rightly place conditions upon the viewing, copying, reporting or moving of such records," he said.

Dutton asked for Olson to sign a document saying that she would not remove any of the documents or post them on social media sites or in other way violate the privacy rights of those involved in legal issues.

"We have had Director Olson's assurance before that she would not copy or take the invoices and she did exactly that," said board member Carol Andrews.

Olson asserted that the legal invoices are not confidential. "They're the public's documents," she said.

Student names are abbreviated or initials are used, she said. Her earlier review of the legal billings showed "there was not one piece of information ... required to be redacted."

"We're telling the public that the invoices belong to the district and not the public," she said. "Each one of us is duly elected by the citizens. We have the right to go in and look."

The School Board voted not to allow Olson to see the unredacted invoices. However, Andrews later suggested that the board allow all board members regular access to redacted attorney invoices.

The motion was made after Olson left the meeting after approximately three hours due to a scheduling conflict. That motion was approved unanimously for the four remaining board members.

 Sharon Salyer: 425-339-3486; salyer@heraldnet.com.
 

Prior to October 2006, the Council reserved the beginning of Council meetings for the public to speak on topics not on the meeting agenda. This segment of the meeting devoted to non-agenda items was televised. In October 2006, the Council unanimously voted to change the Council meeting format to move the segment on non-agenda items to the end of the Council meeting and to not televise that segment. Members of the public were still allowed to address the Council regarding items on the agenda during the regular Council meeting, which continued to be televised.

In 2009 the Council voted again to alter the format of the Council meetings by terminating the segment on non-agenda items. In its place, the Council began holding monthly meetings at different locations in the community where member of the public could discuss issues not included on the Council meeting agenda.

Following the 2009 format change, Lee Smith and Donna Gagnon-Smith sued the Council claiming that the rule changes were intended to limit their free speech rights under the First Amendment of the Constitution. The Smiths regularly spoke before the Council on non-agenda items and even one Council member admitted that one of the reasons for changing the format of the Council meetings was to “turn off the cameras” for “a couple” that spoke before the Council “all the time.”

The Federal District Court of Connecticut reviewed the actions of the Council under the rules governing limited public forums. The Ninth Circuit has similarly held that city council meetings are limited public forums. White v. City of Norwalk, 900 F.2d 1421, 1425 (9th Cir. 1990). In a limited public forum, a governmental entity may impose restrictions on speech that are reasonable and viewpoint neutral. Applying this test, the Connecticut court held that the Council was entitled to restrict public comments at Council meetings to topics on the agenda, because an individual’s viewpoint does not affect whether they are permitted to speak. The court also held that the fact that the Council may have been motivated to institute the format change to restrict the Smiths’ speech is irrelevant, because the rule actually passed by the Council was viewpoint neutral. See Hill v. Colorado, 530 U.S. 703 (2000). Therefore, the court held that the Smiths had not suffered a deprivation of their First Amendment right to freedom of speech and dismissed the action.

The Court of Appeals in 1999 determined that both WACO and WSAC were subject to the public records portions of the 1971 initiative. Telford v. Thurston County Board of Commissioners, 95 Wn. App. 149, 974 P.2d 886 (1999). Questions remain, however, regarding the application of that law to the Public Records Act and OPMA. See Attorney General Opinion 2002 No. 2, finding the Telford analysis must be applied on a factual basis to determine the specific application of the components of the Public Disclosure Act to any particular entity, such as WSAC. The Telford court considered the following four factors to determine the application of the campaign finance provisions to an entity: 1) the entity’s governmental function; 2) the entity’s government funding; 3) governmental control over the entity; and, 4) the entity’s origin.

On June 1, 2011, the Court of Appeals in West v. WSAC, Court of Appeals No. 39366-2, applied those same factors to determine that WACO was also subject to OPMA. The court recognized that the OPMA portion of the Public Disclosure Act does not define “state agency.” This differs from the campaign finance and public records provisions of the public disclosure laws. “Nevertheless, because we construe the OPMA liberally to reach its intended purpose, we hold that for purposes of the OPMA, a “state agency” may be an association or organization created by or pursuant to statute which serves a statewide public function.” The court relied on the legislature’s formal recognition of WACO in 1959 – at WACO’s own request – in support of its determination that WACO was a public agency subject to the OPMA. Courts in other jurisdictions, however, have reached different results. See our March 31, 2011 blog posting.
 

The Puyallup School Board faced a rowdy crowd at its May 9 meeting – a vociferous display of support for a local high school Principal who had submitted his resignation. When the time came to vote on whether to accept or reject the Principal’s resignation, shouting and chants from the crowd reportedly disrupted all order at the meeting. The Board President announced an adjournment of the meeting to another location.

But, the Board appears to have overlooked specific requirements of the Open Public Meetings Act. RCW 42.30.050 allows a public body to adjourn a disruptive meeting and reconvene at a new location. However, that new location must be “selected by majority vote of the members.” Thus, not only must there be a vote to move to a new location, but the new location must be publically approved by a majority of the Board. Public notice of the new location is vital and necessary, because the same statute also provides that “Representatives of the press or other news media, except those participating in the disturbance, shall be allowed to attend any session held pursuant to this section.”

Adherence to the procedural requirements of the OPM are critical, as RCW 42.30.060 mandates that actions taken in violation of the OPM are null and void.

SSB 5553 adds a new section to chapter 42.30 RCW, the Open Public Meetings Act. The text of SSB 5553 is available here.

While the goal of SSB 5553 is admirable, many public agencies have expressed serious concerns, including uncertainty about the finality of legislation, inability to amend legislation at regular meetings and the specter of personal liability for members of governing boards.

The State House of Representatives Committee on State Government and Tribal Affairs has scheduled a public hearing on SSB 5553 for 10:00 a.m. on Thursday, March 24.

For more information about the provisions of SSB 5553 and some of the concerns raised, click here.
 

During an event sponsored for Sunshine Week, March 13-19, reported in the AP article, Associate Attorney General Tom Perrelli is quoted as stating that more records are going out unredacted than ever before. “Where we once might have looked at a document, noticed a piece that could be released, and redacted the rest, we’re now more often determining that we can release the whole thing,” Perrelli is quoted as saying. However, a witness before the Senate Judiciary Committee, Thomas Fitton of Judicial Watch, stated that the conservative watchdog group has “filed 44 lawsuits to force the Obama administration to comply with the law.”

But perhaps there has been a change in how the Administration views the FOIA – now that it is on the inside. In a blog posted March 16 to celebrate Sunshine Week, Steve Croley, a Special Assistant to the President for Justice and Regulatory Policy, points out that it is not in the public’s interests to release every document: “Our government also owes its citizens, among other things, protection of their personal privacy and business confidentiality, effective law enforcement, and a strong national defense.”

In Washington State on the other hand, the courts continue to liberally construe the state’s Public Records Act, and continue to extended its reach. See, for example, the expansive interpretation of the Public Records Act to include records contained on a city council member’s home computer discussed in our blog post of December 22, 2010, “City of Monroe, Washington Pays $157,394 to Settle Public Records Act Case.”
 

Conflicting viewpoints on the issue of what is “confidential” also arise in the local government context, as reported in the February 28, 2011 edition of the Everett Herald: “Legality of disclosing executive session information not an easy call.”

The Everett Herald reported on the censure of an Everett School Board member for disclosing information from a closed, executive session about a potential building purchase. But, the newspaper noted there is a real dispute between the school board and the censured school board member about whether the information she discussed potential acquisition of an office building for multiple educational uses was already public knowledge.

The Everett Herald article points to a continuing dilemma for public officials in Washington, especially for an elected official who finds conflict between the official’s interest in wide ranging conversations with constituents, and the official’s duty to the office to which elected. Washington law expressly prohibits a public official from “disclosing confidential information gained by reason of the officer’s position.” RCW 42.23.070(4).

For elected board members, confidential information is most frequently obtained in a part of a meeting when in executive session under one of the reasons listed in RCW 42.30.110. Listed as the second of those reasons is for an executive session to “consider the selection of a site or the acquisition of real estate by lease or purchase when public knowledge regarding such consideration would cause a likelihood of increased price;” – the specific provision that is the subject the Everett School Board censure.

One can well understand that if a government’s interest in purchasing a specific building or parcel of land and its ultimate price limit is known, that this information may well cause the government and its constituents to pay more that it otherwise would. Thus the justification for an executive session in the first place and the parallel prohibition against disclosing confidential information all make sense. But what is and what is not confidential is often disputed, as illustrated by the Everett School Board controversy. This also highlights the common law and statutory requirements that the elected official’s first responsibility is to the agency, notwithstanding the interest in public communications. See, RCW 42.23. 070(3) (prohibiting a municipal officer from holding another position that would “require or induce” the official to disclose confidential information acquired by reason of the public office). Best practice for any governing board facing this dilemma is to explicitly identify in the executive session itself what it considers to be the particular elements that are and should remain confidential.
 

Like many public bodies subject to an OPMA, the Rutgers Board of Governors would conduct executive sessions at various times, including shortly after the commencement of a meeting. Applying the unique provisions of the New Jersey OPMA, the court concluded that the

“variable time for the resumption of the open session, in combination with the brief 5-minute open session at the beginning of the meeting, creates such uncertainty about when the public session will actually resume as to impermissibility erode the reliability of the times specified in the public notices of the Board’s meeting.”

As a result, the court ordered that the Rutgers Board of Governors must complete its open session before commencing any closed session. This rule is not likely to apply in Washington where the Washington State OPMA specifically requires that before entering an executive session, the agency must identify the period of time for the executive session. RCW 42.30.110 (2). This is to provide the public with knowledge of when the public will regain access to the public portion of the agency’s meeting. Accordingly, the public will know what time the public session is to resume, and any public session that began before that announced time would be in violation of Washington’s OPMA.

Further, the Rutgers court held that the University Board must do more than list the exceptions that would allow a closed session (e.g., attorney-client meeting). The court recognized that the Board must only disclose “the general nature of the subject to be discussed.” But, simply listing the exception without describing the subject matter was inadequate (e.g., when discussing legal dispute over a contract, the Board should announce the contract that is subject to discussion). The Rutgers ruling is not dissimilar to the recent Washington Supreme Court decision under the Public Records Act that requires an identification of claimed exempt documents not only by the basis for the exception to disclosure, but also an explanation of why the exception applies. See September 17, 2010 posting on this site, “Washington Supreme Court issues comprehensive public records act decision.”

The Open Public Meetings Act requires that notice be properly given of a meeting of the governing body. This requirement is not satisfied by notice given for a meeting of a standing committee of a city council as a governing body, where a quorum of members of the city council attend the meeting and take action as defined in the act, such that a meeting of the city council as a governing body takes place.

A reference to the Attorney General Opinion follows: http://www.atg.wa.gov/AGOOpinions/Opinion.aspx?section=archive&id=26916

Particularly important to note is that discussion by a committee may be an “action” under the OPMA definitions. As a result, a better practice for an agency that uses committees (whose meetings are subject to the Open Public Meetings Act) is to include as part of meeting notice (in adopted code, resolution or otherwise) that the committee meeting is also a meeting of the legislative body (e.g., city council). An additional report on the Opinion is at http://www.pnwlocalnews.com/whidbey/wnt/news/111228679.html.
 

Washington, like many states, has a public meeting law that requires public access to meetings of a municipal governing body and related agencies. While public access does not grant a public right to speak at such a meeting (the public has a right to speak at public hearings, not meetings), local councils and commissions regularly provide for citizen comment at some time during a meeting’s agenda. The presiding officer of such a meeting can control the meeting to prevent improper conduct by a citizen. See Council Meeting Conduct and Citizen Rights under the First Amendment.

But, in addition to laws providing for open public meetings, many states prohibit the use of public facilities, funds and personnel to advocate for a political campaign or to support a ballot measure. See RCW 42.17.130, the Washington State law that address this issue. According to the News Tribune, the Sumner councilmember urged the Mayor to cut off a speaker at a city council meeting. The speaker was, according to the councilmember, using the council meeting to advocate for that councilmember’s opponent in the legislative race (and using the City facilities for political activity). The mayor, and apparently the rest of the city council, disagreed with the Councilmember under fire, and the speaker was allowed to continue. The Public Disclosure Commission will now decide whether to reconcile the potentially competing public policies of open public meetings and the prohibition on use of public facilities for campaign activity.

More information about the Task Force can be obtained on the Attorney General’s web page and on the Washington State Auditors Office web page.

A 'Tweet' OPMA violation?

Public perception counts, technical compliance may not be sufficient. Web 2.0 creates risks and challenges.

"'Tweets' bring possible illegal meeting to light. 
Twitter Post reveal a gathering of Mukilteo
City Council members after their official meeting."

Headlines like this recent headline in the Everett Herald hurt public trust, even when no laws are broken.  A post on the Open Records Blog (scroll down to the third post) demonstrates how at least some members of the public will react.

To ensure compliance with the OPMA, the Public Records Act and the retention laws, elected officials and public employees must make sure they understand all of their legal requirements before they use Web 2.0 sites. 

Here are some additional resources on the use of Web 2.0 sites by Elected officials and public employees:

City Council Handbook Wiki

Gov Social Media Wiki

Open Government Year in Review 2008-2009 partial table of contents:

Case Law Updates

• Parmelee v. Clarke:  Court Holds Agencies Can Enforce Their Public Records Act Policies

• RHA v. City of Des Moines:  Supreme Court Underscores the Requirement to Produce an Exemption Log Under the Public Records Act

• Yousoufian v. Office of Ron Sims:  Supreme Court reverses the LARGEST court-assessed Public Records Act penalty in Washington State history – because it was TOO SMALL:  What agencies can learn

• Sitterson v. Evergreen School Dist.:  Washington Adopts the Inadvertently Disclosing Doctrine for Privileged Records

• Bellevue John Does v. Bellevue School Dist. No. 405:  The Supreme Court Re-Affirms Privacy Rights for Public Employees

• West v. Thurston County:  Attorney Fee Bills Must Be Disclosed

• West v. Port of Olympia:  All Deliberative Process Documents Must Be Disclosed After Decision Is Final

• O’Neill v. City of Shoreline:  “Metadata” Is Subject to Disclosure

• Clark v. Tri-Cities Animal Care & Control Shelter:  Is Your Independent Contractor Subject to the PRA?

Open Government legislative update

Articles on Open Government Issues

• End the “Gotcha” Nature of the Public Records Act

• Addressing the “executive sessions” question

• The Open Public Meetings Act, “Serial” Meetings, and Email Exchanges

• Five Issues You Should Consider Before You Decide to Use Your Personal Email or Personal Computer for Official Public Business

• Lessons from Mesa:  Seven Tips to Avoid Being Overwhelmed by the Repeat Public Records Requester (updated 9/08)

• Cautionary lessons from 2009 from around the country 

"D'Amico wins open records suit against Jefferson County for Commissioner Sullivan's phone calls"  Port Townsend Leader

"Records show WWU hushing of information, criticism of student newspaper article" Bellingham Herald

"Monroe's business gets done in secret"  Everett Herald

Tim's conclusion: 

Therefore, I conclude that a governing body may "attend" a meeting by teleconference so long as there is compliance with the other requirements of the OPMA.  Attendance does not require the contemporaneous physical presence of the members of the governing body.  While it may be good policy to require such physical attendance, the OPMA must be construed broadly to fulfill its purpose.

I agree with Mr. Ford's conclusion and recommend that you read the full article. 

In this editorial, Seattle City Attorney Tom Carr responds to an earlier editorial about his role in the "closed door" meeting controversy.  The two editorials serve to highlight an often overlooked point -- the public's perception of a government's compliance with open government laws can be more important than the government's strict compliance with those laws.  One of the primary purposes of open government laws like the Open Public Meetings Act and the Public Records Act is to build public trust.  If the public thinks the government is trying to keep something secret that should be public, it builds distrust.

So were the proposed closed-door meetings legal?  The Supreme Court has repeatedly held that there is no violation of the Open Public Meetings Act when less than a majority of the governing body meet.  See, e.g., In re Recall of Beasley, 128 Wn.2d 419, 427, 908 P.2d 878 (1996).  It's worth noting that the provision in the Attorney General's Open Government Internet Manual cited by the Og-Blog in its post on this controversy is off the mark, at least to the extent that it suggests that it is an open question about whether the OPMA applies when less than a majority of the government body is involved.  The current version of the Internet Manual fails to recognize the Supreme Court's unambiguous decision in Beasley, even though that case was decided ten years after the legislative change cited in the Internet Manual.

There is one possible exception, however, that has not been addressed by the Supreme Court.  When a majority seeks to make decisions through a series of meetings, none of which include a majority but collectively do involve a majority.  This may amount to an illegal "serial meeting."  An appellate court, in holding that an email exchange amounted to an illegal meeting, has recognized this concept, but no appellate court has squarely addressed the issue. See Wood v. Battleground School Dist., 107 Wn. App. 550, 27 P.3d 1208 (2001). Wood also recognizes that the passive receipt of information by a majority does not violate the law.  For more on the Wood case, see this article.

But whether the meetings were legal is now a moot question.  The Mayor and City Council opted to build trust by agreeing to open its doors, even if the meetings would have been legal.  

Original Post

As of Friday afternoon, April 10, 2009, the Seattle City Council and Mayor have decided not to hold closed-door budget meetings, according to this Seattle Times article.

This is a change from the City's earlier decision to hold close-door meetings, which was criticized by the Seattle Times in this article and editorial as possibly violating the Open Public Meetings Act. 

SB 5295. Unanimous Sunshine Committee recommendations

The substitute bill has been voted out of the Senate and has made it out of committee in the House, but with an amendment. Its fate is not certain.

The Sunshine Committee’s recommendations were broken into two bills, one with the unanimous recommendations and one with the non-unanimous recommendations. The former contained the non-controversial recommendations and the latter contained the controversial recommendations. Only the non-controversial, unanimous recommendations made it out of committee. Its most substantive changes affect the following exemptions: 

1. Child Mortality Reviews Exemption (RCW 42.56.360 and 70.05.170)
2. Several non-substantive changes to agricultural exemptions (RCW 42.56.380)
3. State wellness program records (RCW 42.56.360 and 41.04.362)
4. Identifying information about transit riders (RCW 42.56.330(5)

SB 5130. Enjoining prisoners, Laws of 2009, Chapter 10 

This bill was signed into law March 20, 2009, and took affect upon signing. It allows a municipality to file a lawsuit to enjoin prisoners from making public records requests. The municipality must show the prisoner is using public records requests to harass others.

 HB 1552. Additional requirements for open meetings for state agencies

 The substitute version HB 1552 amends the Administrative Procedures Act, not the OPMA. Although it no longer directly affects local governments, it will benefit them by making state agency rule-making procedures more open. The substitute bill has passed the house and the senate, but with an amendment. The amendment clarifies the bill and should be approved in conference.

The views expressed are solely those of the author and do not necessarily represent the views of Foster Pepper PLLC or anyone else. If you disagree or have any comments or suggestions, we encourage your response.
 

U.S. Attorney General Eric Holder has recently issued this memorandum for the implementation of President Obama's January 21 FOIA directions.  All of President Obama's efforts are nicely highlighted in this editorial in The Daily News, from Longview, Washington. 

A recent study of freedom of information laws throughout the world found that the United States has one of the highest ranked freedom of information laws in the world.  This was before President Obama's recent initiatives.

California:

In a recent article, the Sacramento Bee, reported on the open government issues that arise from a mayor using "volunteer" private help.  The article notes that under California law, it is "unclear about whether the emails, text messages, voicemails and other writings produced on non-City equipment and property are public records."

Under Washington law, every record that (1) is related to the conduct of government and (2) is "prepared, owned, used, or retained" by a government is a public record. RCW 42.56.010(2).  Thus records related to the conduct of government that are located on non-public agency equipment will be still be public records as long as the records are used by the agency. 

Maryland:

The Maryland general assembly (its lower house) has just passed new legislation that purports to subject the Maryland legislature to the state's public records and open meetings laws. According to at least one legislator, however, the changes actually make the legislature more opaque. For public records, the new legislation would exempt all emails to and from legislators.  Under current law, some of these emails may have to be disclosed.  For meetings, legislation allows party caucuses, budget meetings between party leaders and lunch meetings with the governor to remain private. These exceptions authorized by the new law may allow legislators to make important decisions outside of the public eye. 

In Washington, the laws permit even greater legislative secrecy.  As noted in this post, the Washington Legislature has defined "public records" to exclude all of a legislator's records. Likewise, the Legislature has excluded itself from the definition of "public agency" in the Open Public Meetings Act, meaning that none of its meetings are subject to that law.