Penalties for PRA Violations King County - $360,000 – (Yousofian)DSHS - $525,000Mason County - $135,000 and $175,000 to

father and son in part for request caught in spam filter

Prosser - $175,000 – round oneMesa - $240,000 – twice annual general tax

collectionJefferson County - $40,000 – attorney fees,

mainly for redacting number to pizza restaurant

PRA Scenario OneYou 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 2Do 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 2Yes. 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 3If 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 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 O’Neill v. Shoreline case.

Answer to Question 3 - IIThis 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 RuleEach agency shall make available for

inspection and copying all public records, unless exempt

Codified in Ch. 42.56 RCWPresumption is that public records are

available for public inspection and copying

Electronic Records - RetentionWAC 434-662Electronic 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 inspectionCannot recover costs for review of records to

redact protected informationMay recover actual copying costsDefault fee is 15 cents a page

Public Disclosure ActAdopted by statewide initiative in 1972Became part of RCWs in 1973Recodified in Ch. 42.56 RCWAmended 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 ObligationsImmediately respondCreate records that don’t existObtain records from somewhere else if

agency does not have recordsRespond to unclear request

ExemptionsMany exemptions from public disclosure in

Ch. 42.56When in doubt, check with legal counsel

Practical Tips to Avoid Liability Make sure that you have adopted policies and

procedures to handle public records requestsMake sure policies are up-to-date and include

electronic recordsAppoint 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 ActCounty Prosecuting AttorneyMRSC Web site: articles, forms, sample

ordinances, links – www.mrsc.orgPublic Records Act for Washington Cities,

Counties and Special Purpose Districts, MRSC Report No. 61, November, 2009

OPMA Question 1Would 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 1Yes – 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. 2If 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 2If 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 RequirementsAll 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 MeetingMeeting of quorum of governing body where

action is taken Action includes discussion, deliberations,

public testimony, review, evaluationsAction includes final action, voting on motions,

resolutions, ordinances

MeetingsSocial gathering or travel excluded if do not

discuss public businessRetreat, work session, study session are

meetingsAdministrative staff can meetTelephonic meetingsE-mail meetings

Who Can AttendNo conditions on public attendanceCameras and tape recorders are permitted

unless disruptiveReasonable rules of conduct can be setNo right of public to comment or discuss at

meeting

Special MeetingAny meeting other than regular meeting

regardless of labelMay be called by presiding officer or majority

of governing bodyMust give written notice 24 hours in advance

of the meeting

Special Meeting NoticeNotice must include:

TimePlaceBusiness 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 - 200Between 300 – 400Between 600 – 700 More than 1,000

OPMA Answer No. 3The answer is actually 614 Most involved executive sessions and many

were really procedural violations

Executive SessionsWhat is an executive session?

part of a regular or special meetingclosed to the public

Who may attend?members of the governing body

others invited

attorney must attend for litigation discussion

ProceduresPresiding officer announces:

purpose of executive session time when it will end

To extend time, announce to what timeMay not take final action in executive session

Reasons for Executive SessionList of allowable reasons in RCW 42.30.110Litigation or Potential litigation – may meet

with legal counsel in executive session to discuss:Agency enforcement actionsLitigationPotential litigation

Actions Not Covered by OPMAListed in RCW 42.30.140Not even covered by Act so notice or other

requirements do not applyMain 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

PenaltiesOrdinances, resolutions, or orders adopted at

illegal meeting are voidMember 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 OPMACounty Prosecuting Attorney The Open Public Meetings Act – MRSC

Report No. 60, May 2008MRSC 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 1Maybe - ?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. 2May 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 circumstancesIf 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.

Unlike for state officials, not in one place in state law

RCW 42.23.070 – Prohibited acts for local government officers

Enacted in 1994Only applies to local government officers, not

employees

Ethics for County Officials

Four ProhibitionsNo municipal officer may use his or her

position to obtain special privileges for himself, herself or othersCan’t waive permit feesNo special rates or fees for county servicesSame procedures apply for permits, etc.

No Special Privileges

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 compensationNo free trips, tickets to events, etc.

No Gifts or Rewards

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 yearOffice of State Auditor likely will apply this

standard to local government officers

What Is a Gift?

Unsolicited flowers and plantsUnsolicited advertising or promotional

items of nominal value – tee shirts, key chains

Unsolicited awards, plaques, trophiesInformational materialsFood and beverages consumed at hosted

reception or function if attendance related to duties

Not Considered Gifts for State Officials

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 positionShould apply to executive sessions

Confidential Information

Personal liability of $500 owed to countyPossible forfeiture of officeIn addition to any other civil or criminal

penalties that may apply RCW 42.23.050

Penalties

May add additional local requirementsCannot conflict with state law but can add

requirementsCan cover employees as well as officersBe sure and check if local code exists

Local Ethics Codes

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…

Contract Interests

Act applies to all local governmentsCounties, cities, towns, special purpose

districtsOfficer is broadly defined but does not

include employeesAll elected and appointed officers of the local

government, together with all deputies and assistants of such officers

Application

What Is a Contract Interest?“Contract” includes employment, sales, purchases, leasesDoes 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 InterestsException 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 42.23.050The 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 ResourcesAdvice from Office of Prosecuting AttorneyMRSC Publication “Knowing the Territory,”

Report No. 47, November 2009Advice 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 42.23.050The 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 ResourcesAdvice from Office of Prosecuting AttorneyMRSC Publication “Knowing the Territory,”

Report No. 47, November 2009Advice from MRSC consultants

Washington’s ActA judicial doctrine first - 1969Codified in Ch. 42.36 RCW in 1982

PurposeBolster public confidence in fairness of quasi-

judicial proceedingsProceedings must be free from even

appearance of unfairnessGoverned 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.

ApplicationIf you have bias that amounts to inability to

provide fair hearing, should be disqualifiedFinancialPersonal - family relationshipPrejudgment

Prohibits: “Ex parte” means: Communications that take

place outside of the formal hearing process on a quasi-judicial matter while matter is pending.

Cure Ex Parte Communication Place on the record any such communicationMake communication public and allow

opponents right to rebut substance

Challenge must Be TimelyMust 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 ViolationIf participation challenged in timely manner,

a court can invalidate.A new hearing and decision without

participation of disqualified participant No monetary damages