3. 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

4. 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?

5. 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.

6. 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?

7. 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.

8. 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?

9. 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.

10. 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.

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

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

19. 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

20. 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

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

23. 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?

24. 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!

25. 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?

26. 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.

27. 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

28. 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

29. 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

30. 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

31. 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

32. Special Meeting Notice Notice must include: Time Place Business to be transacted

33. 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

34. 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

35. OPMA Answer No. 3 The answer is actually 614 Most involved executive sessions and many were really procedural violations

36. 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

37. 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

38. 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

39. 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

40. 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

41. Resources on OPMA County Prosecuting Attorney The Open Public Meetings Act – MRSC Report No. 60, May 2008 MRSC web site – www.mrsc.org

43. 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?

44. 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

45. 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?

46. 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.

47. 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 Ethics for County Officials

48. 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 Special Privileges

49. 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. No Gifts or Rewards

50. 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 What Is a Gift?

51. 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 Not Considered Gifts for State Officials

52. 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 Confidential Information

53. 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 Penalties

54. 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 Local Ethics Codes

55. 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

56. 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 Application

57. 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

58. 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

59. 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.

60. Additional Resources Advice from Office of Prosecuting Attorney MRSC Publication “Knowing the Territory,” Report No. 47, November 2009 Advice from MRSC consultants

61. 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

62. 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.

63. Additional Resources Advice from Office of Prosecuting Attorney MRSC Publication “Knowing the Territory,” Report No. 47, November 2009 Advice from MRSC consultants

65. Washington’s Act A judicial doctrine first - 1969 Codified in Ch. 42.36 RCW in 1982

66. 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

67. 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.

68. 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.

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

70. Prohibits: “Ex parte” means: Communications that take place outside of the formal hearing process on a quasi- judicial matter while matter is pending.

71. Cure Ex Parte Communication Place on the record any such communication Make communication public and allow opponents right to rebut substance

72. 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.

73. 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