Public Records Disclosure

1
Public Records Disclosure
2
Penalties for PRA Violations

• King County - 360,000 (Yousofian)
• DSHS - 525,000
• Mason County - 135,000 and 175,000 to father
  and son in part for request caught in spam filter
• Prosser - 175,000 round one
• Mesa - 240,000 twice annual general tax
  collection
• Jefferson County - 40,000 attorney fees,
  mainly for redacting number to pizza restaurant

3
PRA Scenario One

• You are a county commissioner (or county auditor,
  assessor, sheriff, clerk, etc.) and you receive
  an e-mail on your home personal computer from a
  citizen with a comment on county business. You
  respond to the comment and then delete the e-mail
  exchange.
• Does this raise any concerns with public records
  or other doctrines?

4
Answer to Question 1

• Yes. Under the public records act, the
  definition of public record is very broad.
  Whether a record is a public record is determined
  by its content and use not by the medium used
  to transmit it
• The topic is public business and you are a public
  official so it is a public record whether
  received on home computer or not
• Also, record retention requirements.

5
PRA Question 2

• Do e-mails and text messages constitute public
  records when they are related to county business
  and are on your cell phone, iPhone, BlackBerry,
  smart phone, or other personal digital assistant?

6
Answer to Question 2

• Yes. In addition to your home computer, there
  also could be public records on your cell phone,
  smart phone, iPhone or BlackBerry.
• Also, if you have a Facebook page, or blog
  these may create public records that are public
  records and subject to retention requirements.

7
PRA Question 3

• If you as a county official have private,
  personal, non-c0unty information in e-mails on
  personal computers, could those computers be
  subject to search?

8
Answer to Question 3

• Yes. If a county official has been conducting
  county business on a personal computer, that
  computer and e-mail account are potentially
  subject to search in response to a public records
  request.
• Additionally, if the PRA request results in a
  lawsuit and a court finds that the search that
  was conducted was insufficient, the court may
  order your entire hard drive searched.
• That is what happened in ONeill v. Shoreline
  case.

9
Answer to Question 3 - II

• This scenario does not result in the entire hard
  drive of your personal computer becoming a public
  record.
• However, it could mean that a court would give
  someone else access to your personal computer and
  your personal files.

10
Basic Rule

• Each agency shall make available for inspection
  and copying all public records, unless exempt
• Codified in Ch. 42.56 RCW
• Presumption is that public records are available
  for public inspection and copying

11
Electronic Records - Retention

• WAC 434-662
• Electronic records must be retained in electronic
  format and must remain usable, searchable,
  retrievable, and authentic for the entire length
  of the retention period
• Effective January 1, 2009

12
What Is a Public Record?

• Any writing that contains information relating
  to the conduct of government or the performance
  of any governmental or proprietary function that
  is prepared, owned, used or retained by any state
  or local agency
• Writing includes all forms of written or recorded
  communication

13
Costs

• Cannot recover costs for staff to locate and
  produce records for inspection
• Cannot recover costs for review of records to
  redact protected information
• May recover actual copying costs
• Default fee is 15 cents a page

14
Public Disclosure Act

• Adopted by statewide initiative in 1972
• Became part of RCWs in 1973
• Recodified in Ch. 42.56 RCW
• Amended by legislature and interpreted by courts
  extensively since then

15
Potential Liability

• Counties and cities have been held liable for
  monetary damages for failure to disclose public
  records properly
• Some large settlements from 5 to 100 a day
  for improperly refusing to disclose
• May include costs and attorneys fees

16
Not Agency Obligations

• Immediately respond
• Create records that dont exist
• Obtain records from somewhere else if agency does
  not have records
• Respond to unclear request

17
Exemptions

• Many exemptions from public disclosure in Ch.
  42.56
• When in doubt, check with legal counsel

18
Practical Tips to Avoid Liability

• Make sure that you have adopted policies and
  procedures to handle public records requests
• Make sure policies are up-to-date and include
  electronic records
• Appoint a public records officer
• Training, training, training of staff and
  employees

19
Good News Some Immunity

• No public official, agency or employee will be
  liable nor cause of action exist for damage
  based on release of public record if acted in
  good faith to comply with public records law
  RCW 42.56.060

20
Resources for Public Records Act

• County Prosecuting Attorney
• MRSC Web site articles, forms, sample
  ordinances, links www.mrsc.org
• Public Records Act for Washington Cities,
  Counties and Special Purpose Districts, MRSC
  Report No. 61, November, 2009

21
Open Public Meetings Act
22
OPMA Question 1

• Would it constitute a meeting if there is an
  e-mail exchange between a collective quorum of
  board commissioners, and the board makes
  substantive comments on issues?

23
Answer to OPMA Question 1

• Yes if a quorum of commissioners are discussing
  county business, that would constitute a meeting?
• Does not have to be conducted simultaneously, may
  be what is termed a serial meeting!

24
OPMA Question No. 2

• If the county commissioners used an official
  social media site to host a conversation about a
  county issues, and that conversation included
  comments from individual county commissioners,
  could that constitute a quorum for a meeting?
• If the county noticed it as a meeting, would that
  make it an allowable meeting?

25
Answer to OPMA Question 2

• If the conversation included comments from a
  quorum of the commissioners, it could qualify as
  a meeting. There is not clear authority under
  the OPMA to notice this kind of virtual meeting.
• Under current law, social media sites are best
  used to solicit comments from the public, but not
  for elected officials to formulate policy.

26
Basic Requirements

• All meetings of a governing body of a public
  agency must be open and all persons permitted to
  attend
• All final actions must be adopted at public
  meeting or invalid
• No secret ballots
• Codified in Ch. 42.30 RCW

27
What Is a Meeting

• Meeting of quorum of governing body where action
  is taken
• Action includes discussion, deliberations, public
  testimony, review, evaluations
• Action includes final action, voting on motions,
  resolutions, ordinances

28
Meetings

• Social gathering or travel excluded if do not
  discuss public business
• Retreat, work session, study session are meetings
• Administrative staff can meet
• Telephonic meetings
• E-mail meetings

29
Who Can Attend

• No conditions on public attendance
• Cameras and tape recorders are permitted unless
  disruptive
• Reasonable rules of conduct can be set
• No right of public to comment or discuss at
  meeting

30
Special Meeting

• Any meeting other than regular meeting regardless
  of label
• May be called by presiding officer or majority of
  governing body
• Must give written notice 24 hours in advance of
  the meeting

31
Special Meeting Notice

• Notice must include
• Time
• Place
• Business to be transacted

32
Place of Meetings

• County commissioners must hold regular meetings
  at county seat
• Special meetings may be held outside county seat
  if appropriate notice is given

33
OPMA Question No. 3

• How many incidents of violations or potential
  violations of OPMA reported by Office of State
  Auditor between 2004 and 2007 for local
  governments?
• Between 100 - 200
• Between 300 400
• Between 600 700
• More than 1,000

34
OPMA Answer No. 3

• The answer is actually 614
• Most involved executive sessions and many were
  really procedural violations

35
Executive Sessions

• What is an executive session?
• part of a regular or special meeting
• closed to the public
• Who may attend?
• members of the governing body
• others invited
• attorney must attend for litigation discussion

36
Procedures

• Presiding officer announces
• purpose of executive session
• time when it will end
• To extend time, announce to what time
• May not take final action in executive session

37
Reasons for Executive Session

• List of allowable reasons in RCW 42.30.110
• Litigation or Potential litigation may meet
  with legal counsel in executive session to
  discuss
• Agency enforcement actions
• Litigation
• Potential litigation

38
Actions Not Covered by OPMA

• Listed in RCW 42.30.140
• Not even covered by Act so notice or other
  requirements do not apply
• Main one collective bargaining sessions,
  including contract negotiations, grievance
  meetings, and portion of meeting where governing
  body is planning or adopting strategy in
  collective bargaining matter

39
Penalties

• Ordinances, resolutions, or orders adopted at
  illegal meeting are void
• Member of governing body who knowingly
  participates in illegal meeting subject to 100
  fine
• Judge may award costs and attorneys fees to
  citizen who prevails against agency to enforce
  Act

40
Resources on OPMA

• County Prosecuting Attorney
• The Open Public Meetings Act MRSC Report No.
  60, May 2008
• MRSC web site www.mrsc.org

41
Conflicts and Ethics
42
Ethical Question 1

• All county department heads and county
  commissioners are sent a box of chocolates from a
  local developer during the holidays. No specific
  action is pending or requested by the developer?
• May you keep the chocolates?

43
Answer Ethics Question 1

• Maybe - ?
• RCW 42.23.070(2) No municipal officer may,
  directly or indirectly, give or receive any
  compensation, gift, reward or gratuity from a
  source except the employing municipality, for a
  matter connected with the officers services
  unless otherwise authorized by law
• Strict prohibition unlike state ethics code
  with 50 limit

44
Ethics Question No. 2

• May the spouse of a county commissioner be hired
  to work as an employee in the office of the
  commissioner without violating the conflict of
  interest provision in state law?

45
Answer to Ethics Question 2

• No in most circumstances
• If the salary for the position were less than
  1500 in a calendar month for a part time
  position, it would be allowable
• Arguably a separate property agreement might be
  entered into between spouses to maintain wages as
  separate property.

46
Ethics for County Officials

• Unlike for state officials, not in one place in
  state law
• RCW 42.23.070 Prohibited acts for local
  government officers
• Enacted in 1994
• Only applies to local government officers, not
  employees

47
No Special Privileges

• Four Prohibitions
• No municipal officer may use his or her position
  to obtain special privileges for himself, herself
  or others
• Cant waive permit fees
• No special rates or fees for county services
• Same procedures apply for permits, etc.

48
No Gifts or Rewards

• No officer may give or receive any compensation,
  gift, reward from any source except employing
  municipality for any matter connected with
  officers services unless otherwise provided by
  law
• No additional compensation
• No free trips, tickets to events, etc.

49
What Is a Gift?

• No exceptions on amount of gift in local
  government statute
• State ethics code does have definition of gift in
  RCW 42.52.150
• No gift with value over 50 in year
• Office of State Auditor likely will apply this
  standard to local government officers

50
Not Considered Gifts for State Officials

• Unsolicited flowers and plants
• Unsolicited advertising or promotional items of
  nominal value tee shirts, key chains
• Unsolicited awards, plaques, trophies
• Informational materials
• Food and beverages consumed at hosted reception
  or function if attendance related to duties

51
Confidential Information

• Cannot accept employment or engage in business
  that would require disclosure of confidential
  information
• No municipal officer can disclose confidential
  information gained by reason of officers
  position
• Should apply to executive sessions

52
Penalties

• Personal liability of 500 owed to county
• Possible forfeiture of office
• In addition to any other civil or criminal
  penalties that may apply
• RCW 42.23.050

53
Local Ethics Codes

• May add additional local requirements
• Cannot conflict with state law but can add
  requirements
• Can cover employees as well as officers
• Be sure and check if local code exists

54
Contract Interests

• RCW 42.23.030
• No municipal officer may have a contract
  interest, directly or indirectly, in any contract
  which may be made by, through, or under the
  supervision of such officer, in whole or in part
  

55
Application

• Act applies to all local governments
• Counties, cities, towns, special purpose
  districts
• Officer is broadly defined but does not include
  employees
• All elected and appointed officers of the local
  government, together with all deputies and
  assistants of such officers

56
What Is a Contract Interest?

• Contract includes employment, sales, purchases,
  leases
• Does not prohibit an officer from being
  interested in any and all contracts, only those
  wholly or partially subject to his or her control
• Prohibition applies even if member does not vote

57
Exceptions for Contract Interests

• Exception to rule - May have a contract interest
  up to 1500 in a calendar month in counties with
  less than 125,000 population
• However, no exception applies to purchase or
  lease of property from the county by an officer
  strict prohibition
• Remote interest may apply RCW 42.23.040

58
Penalties RCW 42.23.050

• The officer may be held liable for a 500 civil
  penalty in addition to such other civil or
  criminal liability or penalty as may otherwise be
  imposed.
• The contract is void.
• The officer may have to forfeit his or her office.

59
Additional Resources

• Advice from Office of Prosecuting Attorney
• MRSC Publication Knowing the Territory, Report
  No. 47, November 2009
• Advice from MRSC consultants

60
The Statutory Prohibition Against Private
Interests in Public Contracts

• No municipal officer is to have a beneficial
  interest, direct or indirect, in any contract
  made by, through, or under the supervision of
  such officer.
• RCW 42.23.030.
• Exception may have a contract interest up to
  1500 in a calendar month in counties with a
  population of less than 125,000 in population

61
Penalties RCW 42.23.050

• The officer may be held liable for a 500 civil
  penalty in addition to such other civil or
  criminal liability or penalty as may otherwise be
  imposed.
• The contract is void.
• The officer may have to forfeit his or her office.

62
Additional Resources

• Advice from Office of Prosecuting Attorney
• MRSC Publication Knowing the Territory, Report
  No. 47, November 2009
• Advice from MRSC consultants

63
The Appearance of Fairness Doctrine
64
Washingtons Act

• A judicial doctrine first - 1969
• Codified in Ch. 42.36 RCW in 1982

65
Purpose

• Bolster public confidence in fairness of
  quasi-judicial proceedings
• Proceedings must be free from even appearance of
  unfairness
• Governed by same rules of fairness that apply to
  courts

66
Applies to

• Quasi-judicial actions
• Actions that determine the legal rights, duties,
  or privileges of specific parties in a hearing or
  other contested case proceeding.
• Actions of county councils or commissions,
  planning commission, hearing examiner or board of
  adjustment.

67
Does not apply to

• Local legislative actions
• adopting, amending, or revising comprehensive,
  community, or neighborhood plans or other land
  use planning documents
• adopting area-wide zoning ordinances
• adopting zoning amendment that is of area-wide
  significance.

68
Application

• If you have bias that amounts to inability to
  provide fair hearing, should be disqualified
• Financial
• Personal - family relationship
• Prejudgment

69
Prohibits

• Ex parte means Communications that take place
  outside of the formal hearing process on a
  quasi-judicial matter while matter is pending.

70
Cure Ex Parte Communication

• Place on the record any such communication
• Make communication public and allow opponents
  right to rebut substance

71
Challenge must Be Timely

• Must be raised as soon as the basis for
  disqualification is made known.
• If basis is known or should reasonably have been
  known prior to issuance of decision and is not
  raised, it may not be relied on to invalidate
  decision.

72
Consequences of Violation

• If participation challenged in timely manner, a
  court can invalidate.
• A new hearing and decision without participation
  of disqualified participant
• No monetary damages