Transcript Legal Dos and Don'ts (MRSC)

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
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?
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.
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?
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.
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?
Answer to Question 3
 Yes. If a county official has been conducting county
business on a personal computer, that computer and email 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 O’Neill v. Shoreline case.
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.
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
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
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
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
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
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
Not Agency Obligations
 Immediately respond
 Create records that don’t exist
 Obtain records from somewhere else if agency does
not have records
 Respond to unclear request
Exemptions
 Many exemptions from public disclosure in Ch. 42.56
 When in doubt, check with legal counsel
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
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
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
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?
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!
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?
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.
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
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
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
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
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
Special Meeting Notice
 Notice must include:
 Time
 Place
 Business to be transacted
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
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
OPMA Answer No. 3
 The answer is actually 614
 Most involved executive sessions and many were really
procedural violations
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
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
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
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
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
Resources on OPMA
 County Prosecuting Attorney
 The Open Public Meetings Act – MRSC Report No. 60,
May 2008
 MRSC web site – www.mrsc.org
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?
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 officer’s
services unless otherwise authorized by law
 Strict prohibition – unlike state ethics code with $50
limit
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?
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.
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
No Special Privileges
 Four Prohibitions
 No municipal officer may use his or her position to
obtain special privileges for himself, herself or others
 Can’t waive permit fees
 No special rates or fees for county services
 Same procedures apply for permits, etc.
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 officer’s services unless
otherwise provided by law
 No additional compensation
 No free trips, tickets to events, etc.
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
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
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 officer’s position
 Should apply to executive sessions
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
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
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…
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
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
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
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.
Additional Resources
 Advice from Office of Prosecuting Attorney
 MRSC Publication “Knowing the Territory,” Report No.
47, November 2009
 Advice from MRSC consultants
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
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.
Additional Resources
 Advice from Office of Prosecuting Attorney
 MRSC Publication “Knowing the Territory,” Report No.
47, November 2009
 Advice from MRSC consultants
Washington’s Act
 A judicial doctrine first - 1969
 Codified in Ch. 42.36 RCW in 1982
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
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.
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.
Application
 If you have bias that amounts to inability to provide
fair hearing, should be disqualified
 Financial
 Personal - family relationship
 Prejudgment
Prohibits:
 “Ex parte” means: Communications that take place
outside of the formal hearing process on a quasijudicial matter while matter is pending.
Cure Ex Parte Communication
 Place on the record any such communication
 Make communication public and allow opponents
right to rebut substance
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.
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