The Washington Attorney General has called for legislation to create an administrative board to manage disputes over Public Record Act claims. The legislation is not likely to be considered until 2011. In an op-ed piece in Crosscut, AG Rob McKenna noted during "Sunshine Week" that this would save substantial costs when compared with the current process of litigation.
Publicola is reporting that members of the Bellevue City Council are accusing the majority of violating the Open Public Meetings Act by negotiating the text of a letter to Sound Transit without holding an open public meeting. The council members allege that the letter regarding the future location of a light rail line through Bellevue was drafted via phone and email. The Open Public Meetings Act, Chapter 42.30 RCW, requires that all meetings of the governing body of a public agency shall be open and public. A meeting occurs when the majority of the governing body or any committee acting for the governing body transact any official business of the public agency, including but not limited to receipt of public testimony, deliberations, discussions, considerations, reviews, evaluations, and final actions. A court may determine that a meeting has occurred if a majority transact business via a "serial" or "rolling" meeting in which phone calls or email are forwarded among the group until a consensus is reached.
A 'Tweet' OPMA violation?
Public perception counts, technical compliance may not be sufficient. Web 2.0 creates risks and challenges.
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:
Here are recent open government headlines from Washington State -- thanks to WaCOG andOg-Blog for finding these.
"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
Here is the lasted post on Tim Ford's Unredacted Blog "May a council member attend a public meeting by telephone?"
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.
Update (April 22, 2009) -- Happy Earth Day
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.
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