HomeMy WebLinkAbout01-30-2012 - Supplemental MaterialsCITY OF MEDINA
CITY COUNCIL ORIENTATION
January 30, 2012
LEGAL ISSUES
The information contained in this presentation is based upon materials provided by
the Municipal Research and Services Center of Washington
TABLE OF CONTENTS
Page
FORM OF GOVERNMENT 3
THE JOB OF A COUNCIL MEMBER 4
OPEN PUBLIC MEETINGS ACT
7
PUBLIC RECORDS DISCLOSURE 17
CONFLICTS OF INTEREST
23
THE APPEARANCE OF FAIRNESS DOCTRINE 24
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FORM OF GOVERNMENT
Washington cities and towns are organized under three principal forms of government:
the mayor -council form, the council-manager form and the commission form. Of
Washington's 281 cities and towns, 227 (81 %) operate under the mayor -council form, 53
(18%) have adopted the council-manager form, and 1 (<1%) operates under the
commission form. As a practical matter, the primary forms are the mayor -council and the
council-manager forms, since there is only one remaining commission city and no cities
have adopted this form in recent years.
Council -Manager
The City of Medina operates under the council-manager form that consists of an elected
city council which is responsible for policy making, and a professional city manager,
appointed by the council, who is responsible for administration. The city manager
provides policy advice, directs the daily operations of city government, handles personnel
functions (including the power to appoint and remove employees) and is responsible for
preparing the city budget.
Under the council-manager statutes, the city council is prohibited from interfering with
the manager's administration. The city manager, however, is directly accountable to and
can be removed by a majority vote of the council at any time.
The mayor in council-manager cities is generally selected by the city council. The person
selected must also be a councilmember. The mayor presides at council meetings and is
recognized as the head of the city for ceremonial purposes, but has no regular
administrative duties.
THE JOB OF A COUNCILMEMBER
The principal job of a city or town council is to make policy. A policy is a course of
action for a community. Policy -making often takes the form of passing ordinances or
resolutions. After policy decisions are made by the legislative body, others perform the
administrative task of implementing the policies. The distinction between formulation
and implementation may not always be clear, necessitating open communication between
legislators and administrators.
Adopting Policy
The council does not make policy in a vacuum. Councils rely on ideas from many
sources, including the council staff, citizens' groups, advisory committees, chambers of
commerce, and others. It is the council's responsibility to consider the merits of each idea
and then approve, modify, or reject it. In doing so, councilmembers analyze community
needs, program alternatives, and available resources. The decision often takes the form of
an ordinance or resolution, although it may take the form of a rule, regulation, motion, or
order. The budget and comprehensive plan are powerful policy tools that are adopted by
ordinance.
Local Laws -Ordinances and Resolutions
How does the council adopt policy? Typically, a council will adopt policy through the
passage of ordinances and resolutions at council meetings.
Difference Between Ordinances and Resolutions
An ordinance is a local law of a municipal corporation, prescribing general rules of
conduct. Ordinances may be used for a variety of purposes, including administrative
actions such as establishing offices and setting salaries, or they may be used for actions
that control the conduct of the public. An ordinance is a legislative enactment, within its
sphere, as much as an act of the state legislature.
A resolution, on the other hand, is typically an act that is less solemn or formal than an
ordinance and may be no more than an expression of the opinion of the official body.
Legislation must be enacted via ordinance. Deciding in any particular case what
constitutes legislation may require reference to case law, but the general guiding principle
is that "[a]ctions relating to subjects of a permanent and general character are usually
regarded as legislative, and those providing for subjects of a temporary and special
character are regarded as administrative..." (Durocher v. King County, 80 Wn.2d 139,
153, 492 P.2d 547 (1972).)
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When deciding whether to use an ordinance or a resolution, a good first step is to refer to
the city code and state law (RCW's). Some state statutes leave the form of action to be
employed to the discretion of the legislative body. If the code and statute are silent as to
the mode of decision -making, and the action is not "legislation," then either a resolution
or an ordinance may be used.
Rules for Adopting Ordinances
The state statutes do contain some procedural requirements which govern the adoption of
ordinances. However, these procedural requirements are generally not complicated and
do not require an elaborate adoption procedure.
Many cities and towns have adopted local rules of procedure that relate to the adoption of
ordinances, and these, of course, must be followed. For example, although the state
statutes do not require that an ordinance be read more than once in most circumstances
prior to adoption, many local rules of procedure do contain such a requirement.
Therefore, it is important that councilmembers familiarize themselves with the local rules
of procedure, as well as the state statutory requirements in regard to adoption
requirements for ordinances.
So, Who Actually Runs the City?
It is important to recognize that it is not the role of the councilmember to administer city
affairs. The council sets policy, but it is the city manager that actually sees that the
policies are implemented. This means that it is not the role of the councilmember to
supervise city employees on the job or become involved in the day-to-day administration
of city affairs. This can be a source of conflict between the executive and legislative
branches of city government.
Responding to Citizen Complaints
Residents often contact a councilmember when they have a problem, whether it involves
a land use matter, a barking dog, or a pothole. Don't hesitate to send them to the city
manager or appropriate city staff person for resolution of their problems, keeping in mind
that you lack the authority to take action in administrative matters.
Relationship with the City Attorney
The City Attorney represents the city as a whole. Although the city manager typically
has more contact with the city attorney than the councilmembers or city staff, the city
attorney's job is to advise all of the city officials.
The city manager cannot prohibit the council from having access to the city attorney for
advice. Ultimately, it is up to the council to establish procedures on how city attorney
services are provided.
Personnel Management
The statutes generally give the city manager, as chief executive, the broad authority to
hire and fire employees.
The city council, however, determines the number of employees that can be hired and
those employees' duties. The council establishes salaries and other forms of
compensation paid city workers. The council may also establish job qualifications.
Questions & Answers
Q. What is the role of the city council regarding employee discipline, and what input can
the council have concerning performance appraisals of employees?
A. Though the council may be concerned about employee discipline and how certain
employees are performing their duties, the council should not be involved in any
individual situations. While the council can establish personnel policies and voice their
concerns to .the city manager, it is solely the manager's job to discipline and supervise
city employees, including conducting performance evaluations.
Q. Is the city manager required to inform council members prior to terminating or
disciplining a city employee?
A. No. However, when a particular termination or discipline is likely to be controversial,
the maanager may want to notify the council and explain the decision in an executive
session. Disciplinary and termination decisions should be reviewed with the city attorney
prior to action being taken. The councilmembers should be careful to not discuss specific
cases outside of an executive session.
OPEN PUBLIC MEETINGS ACT
The state Open Public Meetings Act requires that all meetings of governing bodies of
public agencies, including cities and counties, be open and accessible to the public. A
meeting generally includes any situation in which a majority of a city council, board of
county commissioners, or other governing body (including certain kinds of committees)
meets and discusses the business of that body. In order to be valid, ordinances, resolutions,
rules, regulations, orders, and directives must be adopted at public meetings. The Act
contains specific provisions regarding: regular and special meetings; executive sessions;
types of notice that must be given for meetings; conduct of meetings; and penalties and
remedies for violation of the Act.
What constitutes a "meeting" under the Open Public Meetings Act?
The Open Public Meetings Act (OPMA) covers all "meetings" of a local governing
body. There is a common misunderstanding that the term "meeting" only applies if the
governing body takes some kind of final action or vote - such as adopting an ordinance or a
motion.
However, the definition of "meeting" in the OPMA is actually much broader than that.
"Meeting" is defined to include any meeting when "action" is taken. "Action" is defined to
include discussion, deliberations, considerations, reviews, evaluations, and it also includes, of
course, final actions when a formal vote is taken. But it is clear that the OPMA covers all
meetings of a quorum of a local governing body whenever there is merely discussion of
public business, even if no votes or final actions are planned or taken. If a quorum of the
governing body discusses public business, then they are having a "meeting" as defined in the
OPMA and the notice and other requirements of the Act apply.
Does the Open Public Meetings Act apply to training sessions or team -
building exercises involving a governing body?
A "meeting" as defined in the Open Public Meetings Act does not occur simply because a
quorum of a governing body is gathered together. A training or team -building session would
not be a meeting under the Open Public Meetings Act if the governing body (e.g., city
council, board of county commissioners) does not discuss city or county business, as the case
may be, or otherwise take action as defined in the Act. Receiving training or engaging in
team -building exercises does not inherently require the discussion of city or county business.
If the governing body is not going to open such a session to the public, it should be made
clear that the members of the governing body are not to discuss business at the session.
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What is an executive session?
"Executive sessions" are not defined by the Act, but the term is commonly understood to
mean that part of a meeting that is closed to the public. Council may hold an executive
session only for certain purposes that are prescribed by state law. No votes may be taken in
an executive session and no final actions may be taken in executive sessions.
Before convening in executive session, the may must publicly announce the purpose for
excluding the public from the meeting place, and the time when the executive session will be
concluded. If necessary, the executive session may be extended to a stated later time by
announcement of the presiding officer.
What are the allowed purposes for holding an executive session?
RCW 42.30.110 sets forth those purposes. The purposes most applicable to cities areas
follows:
(a) To consider matters affecting national security;
(b) 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;
(c) To consider the minimum price at which real estate will be offered for sale or lease
when public knowledge regarding such consideration would cause a likelihood of
decreased price. However, final action selling or leasing public property shall be taken in
a meeting open to the public;
(d) To review negotiations on the performance of publicly bid contracts when public
knowledge regarding such consideration would cause a likelihood of increased costs;
(f) To receive and evaluate complaints or charges brought against a public officer or
employee. However, upon the request of such officer or employee, a public hearing or a
meeting open to the public shall be conducted upon such complaint or charge;
(g) To evaluate the qualifications of an applicant for public employment or to review
the performance of a public employee. However, subject to RCW 42.30.140(4),
discussion by a governing body of salaries, wages, and other conditions of employment
to be generally applied within the agency shall occur in a meeting open to the public, and
when a governing body elects to take final action hiring, setting the salary of an
individual employee or class of employees, or discharging or disciplining an employee,
that action shall be taken in a meeting open to the public;
(h) To evaluate the qualifications of a candidate for appointment to elective office.
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However, any interview of such candidate and final action appointing a candidate to
elective office shall be in a meeting open to the public;
(i) To discuss with legal counsel representing the agency matters relating to agency
enforcement actions, or to discuss with legal counsel representing the agency litigation or
potential litigation to which the agency, the governing body, or a member acting in an
official capacity is, or is likely to become, a party, when public knowledge regarding the
discussion is likely to result in an adverse legal or financial consequence to the agency.
This subsection (1)(i) does not permit a governing body to hold an executive session
solely because an attorney representing the agency is present. For purposes of this
subsection (1)(i), "potential litigation" means matters protected by RPC 1.6 or RCW
5.60.060(2)(a) concerning:
(A) Litigation that has been specifically threatened to which the agency, the
governing body, or a member acting in an official capacity is, or is likely to become, a
ply;
(B) Litigation that the agency reasonably believes may be commenced by or
against the agency, the governing body, or a member acting in an official capacity; or
(C) Litigation or legal risks of a proposed action or current practice that the
agency has identified when public discussion of the litigation or legal risks is likely to
result in an adverse legal or financial consequence to the agency.
May a governing body go into executive session even if it is not on the
meeting agenda
Yes. There is no requirement in the Open Public Meetings Act that an executive session be
listed on the agenda in order for a governing body to go into executive session. A decision to
go into executive session may be made at the meeting, and this may be done legally as long
as the requirements in the Open Public Meetings Act are followed concerning executive
sessions. Although RCW 35A.12.160, RCW 35.27.300, RCW 35.23.221, and RCW
35.22.288 require that the public be made aware of the preliminary agenda of a city council
meeting in advance of the meeting, this does not mean that a matter arising after the
preliminary agenda has been posted cannot be discussed at the meeting, even in executive
session.
May city council interview candidates for city manager in executive session
and, while still in executive session, reach a consensus on the candidate to
be offered the position?
No. Although the city council may interview the candidates for this appointive position in
executive session under RCW 42.30.110(1)(g) for the purpose of evaluating the
qualifications of applicants for public employment, it may not take any action other than
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evaluating the candidates. Identifying a consensus candidate in executive session would be
action that is not authorized by this provision for holding an executive session. In Miller v.
Tacoma, 138 Wn.2d 318, 328 (1999), the state supreme court stated:
Reading the exception in [RCW] 42.30.110(1)(g) narrowly and in accordance with the
purposes of the act, it is clear the council could discuss and consider the worth, quality
and significance of the applicants' qualifications, and individual council members could
express their opinions on such matters, but they could not choose a candidate. Here the
council conducted a secret ballot. This did not weigh or evaluate the qualifications of the
applicants, but identified a consensus candidate for appointment to the planning
commission. As such, these secret ballots constituted "action" beyond mere evaluation of
the candidates' qualifications and therefore fell outside the scope of the RCW
42.30.110(1)(g) exception.
May a city council meet in executive session to review the qualifications of
candidates for selection as an independent contractor?
No. The only possible provision for executive sessions in the Open Public Meetings Act
under which this could possibly fit is RCW 42.3 0.11 0(l)(g). That section allows an executive
session "[t]o evaluate the qualifications of an applicant for public employment." The council
or board could meet in executive session in this case under this provision only if "an
applicant for public employment" could be construed to cover an "applicant" to be an
independent contractor. Since the Open Public Meetings Act is to be "liberally construed" by
the courts so that any exceptions are narrowly confined (RCW 42.30.910 ), a court would not
likely construe an independent contractor to be a public employee, since they are two
different legal statuses.
If the city council meets in executive session to consider the purchase of
real estate, may it in that executive session direct staff to do some
preliminary work concerning acquiring the property?
Yes, in our opinion, subject to the caution below. Note also that the council or board may
meet in executive session to consider purchasing real property only "when public knowledge
regarding such consideration would cause a likelihood of increased price."
Since this provision recognizes that the process of purchasing or leasing real property or
selecting real property to purchase or lease may justify an executive session, it implies that
the governing body may need to reach some consensus in closed session as to the price to be
offered or the particular property to be selected. However, the state supreme court in Miller
v. Tacoma, 138 Wn.2d 318, 327 (1999), emphasized that "only action explicitly specified by
[an] exemption may take place in executive session." Taken literally, this limitation would
preclude a governing body in executive session from actually selecting a piece of property to
acquire or setting a price at which it would be willing to purchase property, because such
action would be beyond mere "consideration." Yet, the purpose of allowing this type of
consideration in an executive session would seemingly be defeated by requiring a vote in
open session to select the property or to decide how much to pay for it, where public
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knowledge of these matters would likely increase its price. Until this issue receives judicial
or legislative resolution, city and county legislative bodies should exercise caution.
Must meetings be held in a specific place?
As far as the Open Public Meetings Act is concerned, a meeting can take place anywhere.
Other laws may, however, place limitations on where governing bodies may meet or take
action, For example, final action may not be taken by the council of a code city, second
class city, or town on an ordinance or resolution if the meeting is held outside the
corporate limits of the municipality. RCW 35A.12.110; RCW 35.23.181; RCW
35.27.270.
Are social gatherings covered by the Act?
Social gatherings are expressly excepted, unless, of course, official business is discussed
or transacted at the gatherings. RCW 42.30.070 provides in relevant part as follows: "It
shall not be a violation of the requirements of this chapter for a majority of the members
of a governing body to travel together or gather for purposes other than a regular meeting
or a special meeting as these terms are used in this chapter: PROVIDED, That they take
no action as defined in this chapter."
Does the Act require that notice be given for a regular meeting?
A "regular" meeting is defined as a recurring meeting held pursuant to a schedule fixed
by statute, ordinance, or other appropriate rule. The Open Public Meetings Act itself does
not require any special notice of a regular meeting. However, other statutes require city
and town councils to establish a procedure for notifying the public of meeting agendas.
RCW 35.27.300 (towns); RCW 35.23.221 (second class cities); RCW 35.22.288 (first
class cities); RCW 35A.12.160 (code cities).
What notice does the Act require be given for a special meeting?
A "special" meeting is any meeting other than a "regular" meeting. A special meeting
must be announced by written notice delivered personally, by mail, by fax, or by email at
least 24 hours in advance of the meeting to all members of the governing body and to the
news media who have filed written requests for such notice. RCW 42.30.080.
When is a committee of the governing body subject to the Open Public
Meetings Act?
A meeting of a committee of a governing body is subject to the Open Public Meetings
Act when it acts on behalf of the governing body, conducts hearings, or takes testimony
or public comment. RCW 42.30.020(2). A committee acts on behalf of the governing
body when it exercises actual or de facto decision -making power. AGO 1986 No. 16. So,
for example, if a committee is merely gathering information that will result in a
recommendation to the full governing body, it most likely is not subject to the Open
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Public Meetings Act because it is probably not exercising actual or de facto decision -
making authority in these circumstances.
What is a sufficient statement of purpose regarding an executive
session?
The announcement of an executive session should state the purpose of the session and
contain enough information to make it clear that the subject matter fits within one of the
statutory provisions for an executive session. For example, stating that the executive
session is to discuss a "personnel matter" is not sufficient, because only certain types of
personnel matters are appropriate for discussion in an executive session. More specificity
is required; for example, "to evaluate complaints against an employee." Additionally,
citation to the precise subsection of RCW 42.30.110(1) authorizing the executive session
would add specificity.
Is a workshop meeting of the council open to the public?
Yes, a workshop meeting of the council is either a regular or special meeting under the
Open Public Meetings Act, and is open to the public.
What about emergency situations when there is no time for notice to be
given before a meeting?
An emergency - such as a fire, flood, or earthquake - that results in the need for expedited
action triggers suspension of notice requirements under RCW 42.30.070.
What if a member of the audience becomes disorderly at a council
meeting?
The Open Public Meetings Act does not guarantee the right of the public to participate or
become unruly at a council meeting; it only guarantees that they can attend. It is the role
of the presiding officer to see that the public does not become disorderly during a council
meeting. A member of the public may be instructed regarding rules of courtesy and, if
rules are not followed, the speaker may lose any privilege to speak at the meeting and
may even be ejected for disorderly conduct. See RCW 42.30.050.
May a member of the public videotape council or commissioner
meetings?
A local government probably may not prohibit the public from using video or tape
recorders at a public meeting as long as the taping is done in a reasonable manner, and the
meeting is not disrupted. See AGO 1998 No. 15 , which opined that a county does not
have authority to ban video or sound recording of a meeting open to the public.
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How many councilmembers are needed to call a special meeting in a
code city having a seven -member council?
The Open Public Meetings Act authorizes the city council, in addition to the mayor, to
call special council meetings. However, there is a conflict between a code city statute
(RCW 35A.12.110) and an Open Public Meetings Act statute (RCW 42.30.080) as to
how many councilmembers are necessary to call a special meeting. The former allows
three councilmembers to call a special meeting, and the latter allows a majority of the
councilmembers, which would be four in a seven -member council, to do so. The Open
Public Meetings Act statute is the one that must be followed here because of RCW
42.30.140 , which states that, in the event of a conflict with another statute, the Open
Public Meetings Act will control. Thus, four members of a seven -member council are
needed to call a special meeting.
Would discussions of city business between two councilmembers be
considered a council meeting subject to the Open Public Meetings Act?
No. Because less than a quorum of the council is present, it would not be considered a
meeting under the Act.
Must the public be allowed to attend an annual council retreat?
Yes, a retreat is a council meeting which must be open to the public. Regardless of
whether a meeting of the city council is called a council retreat, a council workshop, or a
council study session, the Open Public Meetings Act requires that the public be allowed
to attend. This does not mean that citizens must be given an opportunity to make
comments to the council at the retreat, but they must be allowed to attend. Even if held
outside the city limits, a retreat is still a meeting and the public must be allowed to attend.
May a multi -member legislative body (a quorum of that body) schedule
a pre -meeting session or otherwise meet in advance of a meeting to
review the upcoming meeting's agenda, collect materials or staff
comments for the meeting, and discuss the business that will be
considered?
No, not without inviting the public and following the procedural requirements of the the
Open Public Meetings Act. The Act requires all meetings of the governing body of a
public agency be open and public. RCW 42.30.030. The Act defines the term "meeting"
to be any meeting "at which action is taken." The term'action" is defined as:
(3) Action means the transaction of the official business of a public agency by a
governing body including but not limited to receipt of public testimony, deliberations,
discussions, considerations, reviews, evaluations, and final actions. "Final action" means
a collective positive or negative decision, or an actual vote by a majority of the members
of a governing body when sitting as a body or entity, upon a motion, proposal, resolution,
order, or ordinance. RCW 42.30.020(3 ). As one can see, the term "action" is very
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broadly defined and includes discussions or reviews of agency business. Even though no
final action will take place on an issue, this "pre" meeting should be open to the public
because a discussion of upcoming business will occur.
What happens if the Open Public Meetings Act is violated?
There are several potential consequences for violating the requirements of the Open
Public Meetings Act. Most importantly, actions taken in meetings that violate the Act are
null and void, including the passage of ordinances and resolutions. In addition, a member
attending a meeting knowing it is being held improperly can be punished by a civil fine
of $100. The party that prevails in an action for violation of the Act may recover
reasonable expenses and attorneys' fees under certain circumstances. RCW 42.30.120.
May a citizen may make a sound recording of a council or board of
commissioners meeting and transmit that over the Internet?
The public has a right to make audio and video recordings of council or board of
commissioners meetings, as long as it is done in a way that does not disrupt the meetings.
See AGO 1998 No. 15. Given that right, we see no legal reason why a citizen could not
transmit that recording over the Internet.
A citizen would not need council or board permission to make the recording or to
transmit it over the Internet. However, if a citizen wanted to tap into the council or
board's audio amplification system to obtain a clearer audio recording, he or she would
need council or board permission for that.
Is an employee recognition lunch where employees will be receiving
service awards and a majority of the members of the governing body
will be present a "public meeting" for purposes of the Open Public
Meetings Act?
If the members of the governing body merely attend the luncheon and do not sit together
and discuss city or county business (as the case may be), this would not be a "meeting" of
that body under the Open Public Meetings Act. As support for this position, see AGO
2006 No. 6. While not directly on point, this opinion indicates that, in some
circumstances, a quorum of a city or county governing body may be in the same place at
the same time, without there being a "meeting" of the body itself.
As stated in the AGO, the Open Public Meetings Act would apply if a majority of the
governing body are present and they take any "action," which would include voting,
deliberating together, or using the meeting as a source of public comment for action by
the body. So the members of the governing body should be cautioned to avoid any such
actions while they are attending the recognition lunch.
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May the council meet in executive session to finalize questions to ask
candidates for appointment to fill a council vacancy?
No. There is no provision in RCW 42.30.110, which authorizes executive sessions, that
would allow a closed meeting to finalize questions to ask candidates who want to fill a
council vacancy. The closest provision would be that which allows an executive session
to consider the qualifications of candidates for appointment to fill a council vacancy.
However, the exceptions to open meetings are to be narrowly construed, and discussing
questions to ask candidates at an oral interview is distinguishable from a discussion of
The Open Public Meetings Act and Electronic Communications
Communicating with today's technology is faster and easier than ever. But this ease
poses new pitfalls for officials subject to the Open Public Meetings Act, ("OPMA" or the
"Act"). Unless proper safeguards are in place, the careless use of emails, instant message,
chat rooms, electronic bulletin boards and other electronic communications can lead to
the unintended and unknowing violation of the OPMA. Accordingly, public entities
subject to the Act should have rules and procedures in place to ensure that unintended
violations do not occur.
Under the plain language of the statute, as well as opinions from the Supreme Court, the
Act does not apply if less than a majority meet. The Attorney General and Supreme Court
have also recognized that the Act does not apply, even when a majority gather, if no
"official business" — business that could come before the governing body for a vote —
is conducted. But the Act is not limited to in -person gatherings — a conference call could
also amount to a meeting.
Like letters, emails create their own record that is subject to disclosure under the Public
Records Act, so they will already be exposed by the sunshine laws. For example, the
Virginia Supreme Court held that an email exchange is like an exchange of letters,
already subject to public disclosure, but not amounting to a "meeting." Unlike letters,
however, the exchange of emails can be nearly instantaneous, allowing for a practically
real-time exchange. For other forms of communication, like chat rooms and instant
message, the exchange is instantaneous, and no "record" is necessarily kept.
The one appellate court in Washington to address this issue has found that emails more
closely resemble phone calls, and can therefore amount to a "meeting" under the OPMA
under some circumstances. See Wood v. Battlegound Sch. Dist., 107 Wn. App. 550, 565,
27 P.3d 1208 (2001) (holding email exchange between majority of board amounted to a
meeting).
To amount to a meeting, the email exchange must involve active participation in the
exchange by a majority of the governing body "[T]he mere passive receipt of email does
not automatically constitute a `meeting."' The Washington Supreme Court has long
recognized that "independent and individual examination of documents by commission
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members prior to [an] open meeting" does not violate the act. Thus, as long as a majority
of the governing body does not respond, exchange will not violate the Act.
The Woods court, however, did not require any instantaneous timing as a requirement for
finding a violation of the Act. Instead, it looked to a series of emails over a four -day
period to find an illegal meeting. How far a court would carry this is uncertain, but any
email sent to a majority of a governing body creates a risk that one too many members
will hit "reply all" and create a potential meeting.
To avoid these risks, governing bodies and those who work with governing bodies,
should avoid group emails. If email is to be used to communicate with members of a
governing body, the emails should be sent to each member individually. That will not
make the use of email fool proof however. If a majority responds, and especially if these
responses are shared, it could create the risk of a "chain" meeting. As part of their
orientation, members should be instructed not to reply to such informational emails. Any
email communication that is sent to a majority of a governing body, even if the emails are
sent independently, should also contain an express instruction to the councilmembers not
to reply. While such precautions lessen the beneficial uses of emails, they are necessary
to ensure there is no unintentional violation of the OPMA.
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PUBLIC RECORDS DISCLOSURE
In 1972 the voters in state of Washington adopted Initiative 276, which requires that most
records maintained by state, county, city governments, and all special purpose districts be
made available to members of the public. The public disclosure statutes have been
frequently revised over the past three decades. As of July 2006, these disclosure statutes
are to found in Chapter 42.56 RCW, and the statutes are now referred to as the Public
Records Act. Although the public records disclosure statutes do not apply to judicial
records (case files), the legislature has specifically extended their coverage to state
legislative records. In addition, the public records disclosure statutes apply equally to
"every county, city, town, municipal corporation, quasi -municipal corporation, or special
purpose district" or "any office, department, division, bureau, board, commission, or
agency thereof, or other local public agency."
What constitutes a public record?
The state statutes broadly define public records. "'Public record' includes any
writing containing information relating to the conduct of government or the performance
of any governmental or proprietary function prepared, owned, used, or retained by any
state or local agency regardless of physical form or characteristics." RCW 42.56.010(2).
The term "writing" encompasses a wide range of communication forms or representation.
Writing includes, but is not limited to, any form of letters, words, pictures, sounds, or
symbols and all papers, maps, tapes, films, prints, motion picture, film, and video
recordings. RCW 42.56.010(3).
All local government records are available for review by the public, unless they are.
specifically exempted or prohibited from disclosure by the state statutes. A listing of the
primary exemptions are found at RCW 42.56.230 through RCW 42.56.480. Numerous
other exemptions and disclosure prohibitions are sprinkled throughout the state statutes.
FREQUENTLY ASKED QUESTIONS
May a city or county charge more than 15 cents per page for color
copies?
A city or county may charge no more than 15 cents a page unless it has determined the
actual per page cost. If the city or county determines that the actual per page cost of a
color copy is, say, 20 cents, it may charge that amount for color copies.
Do cities have an obligation under public records law to provide records
that will be filed with or created by the city or county in the future?
No. As stated in WAC 44-14-04004(4)(a), part of the attorney general's office's "Model
Rules for Public Records,":
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An agency must only provide access to public records in existence at the time of the
request. An agency is not obligated to supplement responses. Therefore, if a public record
is created or comes into the possession of the agency after the request is received by the
agency, it is not responsive to the request and need not be provided. A requestor must
make a new request to obtain subsequently created public records.
See also, Smith v. Okanogan County, 100 Wn. App. 7, 14 (2000), holding that "an agency
is not required to create a record which is otherwise nonexistent."
May a public records request be satisfied by directing the inquirer to a
link on a web site?
The Model Rules for Public Records adopted by the Washington State Attorney General's
Office (Ch. 44-14 WAC) state that an agency can provide access to public records by
posting them on its web site. If the requestor does not have internet access, the agency
may provide access to the record by allowing the requestor to view the record on a
specific computer terminal at the agency open to the public. Despite the availability of
the record on the agency web site, a requestor can still make a public records request and
inspect the record or obtain a copy of it by paying the appropriate per -page copying
charge.
Must city governments disclose private e-mail addresses found in
correspondence it receives, or may it redact such information?
In our opinion, they must disclose such information. While the public disclosure statutes
exempt the disclosure of residential addresses, such as the residential addresses of an
agency's employees and volunteers and those of utility customers, there is no general
exemption for addresses and, in any case, an e-mail address is not a residential address.
To conclude otherwise would require an expansive reading of the exemption for
"residential addresses," contrary to statute which requires exemptions to be "narrowly
construed."
Must copies of public records be provided at no cost if requestor says
he/she cannot afford the cost?
There is no provision in state public disclosure law that exempts indigent persons from
having to pay for copies of public records pursuant to a public disclosure request. A
public agency could adopt a policy to that effect; however, unless it puts an upper limit
on that number, it would be opening itself up to providing to indigent persons any
number of copies at no charge. Also, any such policy should require proof of indigent
status, as that may be defined in the policy.
IL]
In connection with a public records disclosure request, may a city
charge for the cost of retrieving and re -filing public records that are
archived in commercial facilities that charge for such costs?
No. Public agencies may not charge requestors for any costs incurred with locating
records and making them available for inspection and/or copying. Copying charges may,
of course, be imposed. See RCW 42.56.120
Is a local government agency required to respond to a public records
disclosure request electronically? Specifically, if a requestor asks that
copies of specific public records be faxed, e-mailed, or provided via
diskette, must the city respond as requested?
If a person requests that electronic records be provided in electronic format, the city is
required to provide the records in electronic format. O'Neill v. Shoreline, 145 Wa.App.
913 (2008). The PRA requires agency rules to "provide for the fullest assistance to
inquirers". RCW 42.56.100.
If paper records are requested in electronic format, a local government agency is not
required to transfer the printed records to electronic format. An agency is not obligated
to create a new record to satisfy a records request. Smith v. Okanogan County, 100
Wn.App. 7, 13 (2000). See also WAC 44-14-04003(5). If it is easier for staff to respond
electronically, that is certainly encouraged.
How should a city respond to a general request for information or
records on a particular subject?
Under state public disclosure law, public records are to be made available for inspection
and copying upon a request for "identifiable public records." RCW 42.56.080 Thus, if an
individual simply requests information on a particular subject or all records on a
particular subject, such a request does not comply with the specificity required by the
statute. For example, a city would not be required to comply with a request for all records
relating to utility rates, but it would be required to comply with a request for all utility
rate ordinances enacted between 1985 and 1990. To facilitate public access to public
records, a city must maintain an index of its records, unless to do so would be unduly
burdensome. RCW 42.56.070(3), (4). See also WAC 44-14-04002(2) which discusses
"identifiable record".
How soon must a city respond to a request for public records?
State law requires that responses to requests for public records be made "promptly."
Specifically, cities and other governmental agencies must within five business days of
receiving a request respond in writing by either (1) providing the record, (2)
acknowledging receipt of the record and providing a reasonable estimate of the time in
which a response will be made, or (3) denying the request. Additional response time
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beyond five days may be based upon a need to clarify the request, to locate and assemble
the records requested, to notify people and agencies affected by the request, or to
determine whether any of the requested records are exempt from disclosure.
What public records are exempt from disclosure?
In general, public records that are exempt from public disclosure are those in the
categories listed in RCW 42.56.210 through 42.56.480. Reference must be made to these
statutes to determine on a case -by -case basis whether a particular record is exempt.
(Examples of a few commonly encountered exemptions are discussed in questions
below.) When a city denies a request for disclosure of a public record, it must identify the
specific statutory exemption upon which the denial is based and it must provide a brief
explanation of how that exemption applies. RCW 42.56.210(3).
Is personal information contained in employee personnel files exempt
from disclosure?
It depends on the nature of the information in these records. Residential addresses,
residential phone numbers, personal e-mail addresses, social security numbers,
information regarding dependents, etc. are all exempt. See RCW 42.56.250(3).
RCW 42.56.230(2) exempts employee records records "to the extent disclosure would
violate [the employee's] right to privacy." What constitutes a violation of a person's right
to privacy is defined by statute to mean the disclosure of information that would be (1)
"highly offensive to a reasonable person" and (2) "not of legitimate concern to the
public." RCW 42.56.050. This is a stringent test, and it is unlikely that the disclosure of
most records found in personnel files would violate an employee's right to privacy, as
defined by this statute.
Medical records of employees are PROHIBITED from disclosure by the statutes in
chapter 70.02 RCW.
Must a city disclose records which reveal the salary and benefits that a
particular employee or official receives?
Yes. There is no disclosure exemption that applies to such records. Employee voluntary
deductions from salary are exempt. The public has no legitimate need to know, for
example, how much an employee donates monthly to a United Way campaign, or how
much an employee contributes voluntarily to a retirement plan or "cafeteria -type"
program.
Must a city disclose utility billing records?
Yes. No exemption applies. However, the city should not disclose the residential
addresses and telephone numbers of utility customers that may be contained in such
records. RCW 42.56.330.
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Must a city provide public records if they are being requested for
commercial purposes?
In addition to the statutory exemptions from disclosure that a city must consider in
responding to a particular request, a city is prohibited from providing or giving access to
"lists of individuals" if requested for commercial purposes. RCW 42.56.070(9). The
Attorney General's Office has interpreted this provision to refer only to lists of natural
persons, rather than, for example, to lists of businesses. Public records other than "lists of
individuals" requested for commercial purposes should be provided upon request if they
are not statutorily exempt from disclosure.
May town disclose record containing a list of town businesses if
requested for a commercial purpose?
Yes. Based on an attorney general's opinion, the statutory prohibition on disclosing "lists
of individuals" if requested for commercial purposes [see RCW 42.56.070(9)] applies
only to lists of "natural persons," and thus, does not apply to lists of businesses.
Must records of a local government agency be copied for free for
nonprofit organizations?
No. The public records law allows a local government agency to recover a reasonable
charge for providing copies of public records to any person. This applies to nonprofit
corporations as well as private citizens or businesses. The charge may not exceed the
amount necessary to reimburse the agency for its actual costs and may not include staff
time needed to retrieve the documents.
Are informal notes prepared and kept by mayor and councilmembers
public records that are subject to disclosure?
Informal notes prepared for the use of the official for his or her own convenience,
maintained in a way that indicates a private purpose, and not intended for circulation or
distribution within the city, would most likely be considered personal and not public
records. As such, they would not be subject to disclosure upon request by a member of
the public.
Should salaries of public employees be disclosed upon request?
Yes. Salaries (and the gross wages after deductions) of all public officials and public
employees must be disclosed. Personal information regarding public employees, such as
home address, phone number, social security number, etc., should not be disclosed. No
exemption applies to salaries. The exemption for public employee personal information
is RCW 42.56.250.
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Must city agree to provide copies of "future records"?
In our opinion, no. The responsibility to provide inspection or copies of records is set out
by RCW 42.56.070:
Are cities required to create a document when responding to a specific
request for public disclosure?
A Court of Appeals decision has addressed this issue directly: Smith v. Okanogan
County, decided 2/8/00:
No Washington case has decided whether a duty to create an otherwise
non-existent document exists under RCW 42.56. But there is federal law
on this issue.... Under the Freedom of Information Act, an agency is not
required to create a record which is otherwise non-existent.... We agree
and determine there is also no such duty under the State Act.
Does a local government agency have an ongoing duty to provide
documents relevant to a public disclosure request?
No. If documents that a city or county would have disclosed in response to a public
disclosure request are received or created after the city or county has responded to a
request, it does not have a duty to provide those documents. It would be incumbent upon
the requester to make a subsequent request. If a city does not have or has not yet created
a record when the request is made, it is not covered by the request.
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CONFLICTS OF INTEREST
Washington law governing conflicts of interest in municipal government is principally
statutory, although a basic conflict of interest prohibition is contained in article 11,
section 8 and article 30 of the state constitution, which together prohibit mid-term or
post -election pay increases for officials who fix their own compensation. Under this
constitutional prohibition, city or town councilmembers may not enact a pay increase for
the office of a councilmember which would apply to any of the current councilmembers'
terms. If a city establishes a salary commission (see RCW 35.21.015), salaries established
by that commission are not subject to this prohibition.
The basic statutory prohibitions concerning conflicts of interest concern contractual
interests and are contained in chapter 42.23 RCW. The basic prohibition of the chapter,
contained in RCW 42.23.030, prohibits a municipal officer from having a "beneficial"
(financial) interest, directly or indirectly, in two types of contracts. The first is contracts
that are or may be made by, through, or under the officer's supervision, in whole or in
part. The "supervision" element of this prohibition has to do with the making of the
contract, not with implementing the contract after it has been made. So, where the officer
concerned is, for example, a city councilmember, the basic prohibition is triggered for all
contracts because of the council's authority over the making of all city contracts and
regardless of whether the councilmember in question votes or not.
The second type is contracts made for the benefit of the municipal officer's office. In
addition, the statute prohibits an officer from accepting any compensation, gift, or award
in connection with such contracts from any person having a beneficial interest in them. It
is worth noting that the community property interest of one spouse in the earnings of
another has been held by the courts to be a sufficient beneficial interest to trigger the
prohibition contained in this statute. The interest of other relatives of a municipal official
in a contract would not, however, trigger the prohibition.
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THE APPEARANCE OF FAIRNESS DOCTRINE
The appearance of fairness doctrine is a rule of law that requires government decision -
makers to conduct quasi-judicial hearings and make quasi-judicial decisions in a way that
is both fair in appearance and in fact. Since the City Council has adopted a hearing
examiner system to conduct quasi-judicial hearings, the doctrine has limited application
to Council proceedings. Nevertheless, the doctrine may serve as a useful guideline to
council members when making legislative decisions.
A matter is quasi-judicial when the legal rights, duties, or privileges of specific parties are
decided in a contested case proceeding by non judicial decision -makers, such as city or
county councils, planning commissions, boards of adjustment, and hearing examiners.
The doctrine has been applied primarily to quasi-judicial land use decisions, and its
purpose is to bolster public confidence in the fairness of such decisions by:
the elimination of actual bias, prejudice, improper influence or favoritism, but also in the
curbing of conditions which, by their very existence, tend to create suspicion, generate
misinterpretation, and cast a pall of partiality, impropriety, conflict of interest or
prejudgment over the proceedings to which they relate. Chrobuck v. Snohomish County,
78 Wn.2d 858, 868 (1971).
The doctrine as applied to quasi-judicial land use decisions, developed by Washington
Supreme Court in the late 1960's, was codified by the state legislature in 1982. See
Chapter 42.36 RCW. The doctrine does not apply to legislative or policy -making
decisions, such as the adoption or amendment of comprehensive plans or zoning
decisions of area -wide significance.
Frequently Asked Questions
1. Which land use matters are legislative actions?
Legislative actions include adoption, amendment, or revision of comprehensive,
community, or neighborhood plans or other land use planning documents, or adoption of
zoning ordinances or amendments which are of area -wide significance. See RCW
42.36.010.
2. Is a council hearing on the adoption of an area -wide zoning
ordinance subject to the appearance of fairness doctrine?
No. Even though it requires a public hearing and affects individual landowners, this type
of proceeding is legislative rather than adjudicatory or quasi-judicial.
3. Is an annexation subject to the appearance of fairness doctrine?
No. An annexation is a legislative action and not a quasi-judicial action.
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4. Does the doctrine apply to street vacations?
No. Even though a hearing is held, this is a legislative policy decision, not an
adjudicatory matter.
5. Which city officials are subject to the doctrine?
According to RCW 42.36.010, council members, planning commission members, board
of adjustment members, hearing examiners, zoning adjusters, or members of boards
participating in quasi-judicial hearings which determine the legal rights, duties or
privileges of specific parties in a hearing or other contested case proceeding," are all
subject to the doctrine.
6. Are any city officials or employees exempt from the appearance of
fairness rule?
Even though required to make decisions on the merits of a particular case, department
heads and city staff persons are not subject to the appearance of fairness rules.
7. If a councilmember announces before the hearing has even been held
that her/his mind is already made up on a matter, what should be
done?
The member should disqualify her/himself. (See Chrobuck v. Snohomish County, 78
Wn.2d 858, 480 P.2d 489 (1971).
8. May the council and planning commission meet jointly to consider a
presentation by a developer?
If no specific application has been filed by the developer, the council probably may meet
jointly with the planning commission to consider a proposal by a developer. The
appearance of fairness doctrine has been held by the courts to apply only to situations
arising during the pendency of an action. If no application has been filed, no action is
pending before the city. But if a formal application for a rezone has been filed, a joint
meeting would probably violate the doctrine.
9. Is there an appearance of fairness problem if a planning commission
member owns property within an area proposed for rezone?
It would violate the appearance of fairness doctrine if a planning commission member
who owns property in the area to be rezoned participates in the hearing and/or votes. In
the leading case on this issue, Buell v. Bremerton, 80 Wn.2d 518, 495 P.2d 1358 (1972),
a planning commissioner owned property adjacent to an area to be rezoned. The court
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determined that the commissioner's self-interest was sufficient to invalidate the entire
proceeding.
10.If a councilmember has disqualified herself from participation in a
council hearing because she is an applicant in a land use matter, may
she argue her own application in writing before the council?
Our courts have ruled that once a member relinquishes his or her position for purposes of
the doctrine, he or she should not participate in the hearing. A disqualified decision
maker should not join the hearing audience, act on behalf of an applicant, or interact in
any manner with the other members. See Hayden v. Port Townsend, 28 Wn. App. 192,
622 P.2d 1291 (1981).
1 l.May a relative of a councilmember who is also a developer act as an
agent for that councilmember in presenting the proposal to council?
Yes, a relative would be allowed to act as the agent in these circumstances.
12.May the spouse of a disqualified councilmember testify at a hearing
before the council?
If the councilmember disqualifies him or herself on a quasi-judicial issue coming before
the council, his/her spouse may testify as long as the councilmember leaves the room and
does not attempt to vote or participate in the deliberations.
13.In a situation in which the chairman of the planning commission is a
realtor and represents a client wishing to purchase property in an
area of the city that is being considered for a rezone, may the
chairman participate in the hearing and vote on the rezone
application?
The fact that the chairman is a realtor does not in itself disqualify him from participation
in rezone hearings. However, his representation of a client wanting to purchase property
in the area being considered for a rezone constitutes sufficient reason for disqualification
from participation.
14.Will a violation of the appearance of fairness doctrine invalidate a
decision even if the vote of the "offender" was not necessary to the
decision?
Yes. Our courts have held that it is immaterial whether the vote of the offender was or
was not necessary to the decision.
►� .
15.Can a candidate for municipal office accept campaign contributions
from someone who has a matter pending before the council?
Yes. Candidates may receive campaign contributions without violating the doctrine.
RCW 42.36.050; Improvement Alliance v. Snohomish Co., 61 Wn.App. 64, 808 P.2d 781
(1991). However, contributions must be reported as required by public disclosure law.
Chapter 42.17 RCW.
16.What should a decision -maker do if an appearance of fairness
challenge is raised?
The challenged decision -maker should either refrain from participation or explain why
the basis for the challenge does not require him or her to refrain.
17.If a violation is proved, what is the remedy?
The remedy for an appearance of fairness violation is to invalidate the local land use
regulatory action. The result is that the matter will need to be reheard. Damages,
however, cannot be imposed for a violation of the doctrine. See Alger v. City of Mukilteo,
107 Wn. 2d 541, 730 P.2d 1333 (1987).
18.What city department oversees application of the appearance of
fairness doctrine?
No person or body has the authority to oversee application of the appearance of fairness
doctrine to members of a city council. It is up to the individual councilmembers to
determine whether the doctrine applies to them in a particular situation, and to disqualify
themselves if it does. Some city councils have established rules that allow the votes of the
council to disqualify a member in the event of an appearance of fairness challenge. A city
council probably has the authority to establish such a rule based upon its statutory
authority to establish rules of conduct.
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