The following was received by our Central Washington Sentinel editor Jerry Martens on 2/20/20 from Prosecuting Attorney Greg Zempel. The communication contains a contradiction to concerns currently being circulated over Kittitas County policies regarding public contact of the Board of County Commissioners.
February 21, 2020 | Central Washington Sentinel | by Editorial Staff~~
TO: Jerry Martens
FROM: Greg Zempel, Kittitas County Prosecuting Attorney
RE: Concerns over “NEW” Policy related to Open Public Meetings Act
Recently, the Board of County Commissioners, all of whom are relatively newer in length of service, have received complaints about a “new” policy in how they can meet with constituents. I have received copies of communication received from some which seem to indicate that this is a lack of transparency on the part of the Board. Others have suggested that the Board should push back against the Prosecutor, or that the Prosecutor should maybe be replaced for providing such advice.
Let me start by clarifying that the advice provided by the Prosecutor to the Board of County Commissioners is NOT new advice, or new policy. It is consistent advice that has been given by the Elected Prosecutor for the better part of two decades. It is not based upon County policy or personal prosecutor desires. Rather, it is based upon the mandates of the Open Public Meeting Act codified in State law in chapter 42.30 of the Revised Code of Washington (RCW). This act while modified from time to time, has been in place since 1971. Compliance with the act can best be described as difficult, in terms of a host of issues, for both members of the public and for Boards of County Commissioners.
The OPMA came about in conjunction with another, the Public Records Act, codified in State law in chapter 42.56 RCW. The citizens created these by initiative to provide greater transparency and accountability of elected officials. One of the clearer purposes of the OPMA was to force discussions and decisions by public officials into the public where the light of day could shine upon such work, and to reduce the real or perceived evil of shady back room deals. There are some exceptions within the Act, but they are very narrowly tailored and applied (See RCW 42.30.110).
It is my guess that most of us can agree upon the underlying goals of the OPMA – transparency and accountability for government entities conducting the business of the citizens. However, in application, the difficulty of compliance falls hardest upon Boards of County Commissioners which tend in the majority to have three (3) members. The Courts have developed a working definition of what a meeting is under the OPMA, defining a meeting as a gathering when a quorum of a city council, board of county commissioners, or other governing body (including certain kinds of committees) gathers with the collective intent of transacting the governing body’s business. (Citations omitted). This is reflective of the very broad definition of “action” set forth in RCW 42.30.020(3), which states:
“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.
Changes in technology have expanded how meetings can occur, to include via telephone, email, or electronic media. Counties tend to have the smallest number of board members of public agencies, resulting in a quorum being met when two (2) members meet.
And the Courts have been willing to expand the definitions on how and where meetings can occur:
Meetings do not have to take place in-person, at one time, to be considered a “meeting.” Although meetings typically occur when all participants are present at a designated time and place, it is also possible for a majority to meet remotely, such as by telephone or email. A meeting can also occur sequentially, over time, if enough members to make a quorum collectively discuss or act upon an issue outside a public meeting. For example, board member A speaks to board member B about board business and then B discussed the prior conversations with board member C. Once a quorum has participated and shared information, a meeting has occurred [In the case of a 3-member Board, that happens when A speaks with B]. If notice of the meeting was not given and the public not allowed to attend, the OPMA is violated. (Case synopsis by Municipal Research and Services Corporation).
The reverse issue that creates problems is both a real experience and a perception issue. If Person A meets with Commissioner BW and discusses a matter of County Business and indicates they are going to meet with Commissioner CW about the same issue and they have such “discussions” about such county business, a meeting has arguably taken place. If it is knowingly done, then both Commissioners have knowingly violated the law. The City of Seattle ran into this buzz saw after they enacted an employee head tax. After the tax passed, an uproar occurred, and Amazon stopped construction. The Council and Mayor decided that apparently the tax was not a good idea. Members of the Mayors staff and a Community Action group spoke with and polled various council members and ultimately announced there would be another vote. The folks involved indicated that they were confident that they had enough votes to succeed. There was only one way that could happen: They had already discussed it with various members of the Council, meaning action had taken place. The City of Seattle was sued and have settled at least one of those lawsuits for several hundred thousand dollars. Similar issues and lawsuits have occurred around the state, include one in Yakima County.
The perception problem comes in when two Commissioners appear to be meeting, even if they are talking about the recent Seahawks game and not business. Someone looking in from the hallway in front of the Commissioners Offices or looking in from the parking lot and seeing two commissioners speaking could legitimately think that a meeting was occurring. They could look to see if proper notice of the meeting had been made, and they could file a complaint, or at least discuss their opinion that a meeting was taking place. While it is possible to defend a lawsuit about a discussion about the Seahawks, the perception issue is still one that we caution our commissioners about avoiding.
The flip side of this coin is that individual members of Boards often are exercising quasi-judicial roles and the constraints on how they receive information are even more stringent. There are times when members of the public desire to meet with a member of the BOCC and are asked by staff for details. Sometimes they are very persistent in not setting meetings without sufficient information because they are attempting to assist the Board members with compliance and not allowing them to be in difficult positions, or attempting to save a citizens time, given that if the topic is not allowed to be discussed the Board member will have to tell the person that, and they may have wasted their time in coming to the courthouse.
As the Prosecutor, one of my functions is to attempt to prevent liability for the County, and individual representatives of county government including the Commissioners. And trust me when I say that no County Commissioner has liked my advice on compliance with the OPMA because it is not easy to conduct business or be responsive to citizens when any gathering of two of them constitutes a meeting under the act IF they are discussing County business. And non-compliance with the Act has consequences:
- Any action taken at a meeting held in violation of the OPMA is null and void (See RCW 42.30.060(1);
- Any member of a governing body who attends a meeting knowing that it violates the OPMA is subject to a potential personal liability of $500.00 for the first violation and $1,000.00 for a subsequent one (See RCW 42.30.120(1) and (2);
- Any person who prevails against an agency in any action in the Courts for a violation of the OPMA will be awarded all costs, including attorney fees, incurred in connection with such legal action (See RCW 42.30.120(2)); and
- A knowing violation of the law might subject a Commissioner or other elected official to a recall proceeding under RCW 29A.56.110 – .270.
As with any advice provided to County decision-makers, my office attempts to find ways to work with county employees to find solutions that help with providing greater access to information and to decision-makers. Our County was one of the first to take steps to automate records for public consumption and make large amounts readily available on the website. Our County has begun to stream their meetings via the web. We have created systems to track and respond to public records using technology. The Commissioners have added public comment time to their agendas. The Commissioners attempt to hold meetings on important topics in the locations of the county where the impacts are felt.
And, perhaps most importantly, this group of Commissioners is trying to be responsible in not violating the law. It is not easy; it is frustrating for all involved, and it is an area where perception and reality cross paths. They are open and willing to hear suggestions on how they can be more inclusive and how to provide greater access within the constraints of the OPMA. We often look at issues from a direction colored by history and familiarity. Sometimes, it takes someone looking at the issue from a different perspective. If you have better solutions, I am certain the Board would love to hear from you. In the meantime, they will continue to try and be accessible within the constraints of the law, believing that being leaders requires such behavior.