DUTIES OF ELECTED OFFICERS The duties are condensed and paraphrased from Roberts Rules of Order, 9 th Ed.

Transcription

1 DUTIES OF ELECTED OFFICERS The duties are condensed and paraphrased from Roberts Rules of Order, 9 th Ed. Chair: Open meeting at appointed time; Call meeting to order; Ascertain that a quorum of members is present; Announce agenda items as they come up during meeting; Adjourn meeting; Recognize members who wish to speak; State and put to vote all motions; Announce each vote result; Enforce rules of order; Decide on questions of order, and; Sign official Commission paperwork. Vice-Chair: Assume the duties of the Chair in his or her absence. Secretary: Keep a record of proceedings; Send out notices of meetings; Conduct general correspondence of the commission; prepare meeting agenda, and; Preside as Chair in the absence of the Chair and Vice-Chair. *Note: Traditionally, the County provides a staff person to perform most of these administrative functions as a Commission clerk. A Commission Secretary would liaison between the Commission and the staff. Treasurer: Entrusted with custody of the Commission s funds. *Note: The County Council Office must account for and manage the Commission s budget and disburse funds. A Commission Treasurer would liaison between the Commission and the Council Office for budgetary purposes.

2 You want to D alert the chair to an urgent matter affecting the assembly or of personal privilege. E have the Convention follow the agenda. G end debate and vote on the motion. Can you interrupt a You say speaker? I rise to a question of {privilege affecting the assembly, personal privilege}. I call for the orders of the day. I move the Previous Question. J send a matter to committee. I move to commit the motion Does your motion need a second? Is your motion debatable? Can someone amend your motion? Applies to which motions? Yes No No No None None Vote Required Yes No No No None No vote No Yes No No Any debatable or amendable No Yes Yes Yes No subsidiary motion 2/3 Majority K modify a pending motion. I move to amend No Yes Yes (usually) Yes All amendable Majority M bring business before the Convention. I move No Yes Yes Yes None Majority S alert the chair to some error. Point of order. Yes No No No Any error No vote T disagree with the ruling of the chair. X have the vote counted using a rising vote. Y obtain information on parliamentary law or rules of the organization. Z request information relating to the business at hand. Robert's Rules of Order Quick Reference Sheet Robert's Rules can be confusing to people who have never encountered it before. However, it is the most efficient way to handle business at a large meeting. Robert's Rules of Order protects the rights of the majority, of the minority, of individual members, of absentees, and all of these together. The following points and chart should cover all you need to know to effectively participate during a meeting. Only voting delegates may make motions or vote on motions. Non-voting delegates may participate in the debate on a motion. State your name and the Chapter you represent (also add that you are a non-voting delegate, if necessary) when speaking or making a motion. Stand in line at one of the microphones to obtain the floor. You do not need to obtain the floor to second a motion or to make one of the motions that allow you to interrupt the speaker (although the chair may ask you to go to a microphone). Attempts to use point of order, point of information, or parliamentary inquiry to participate in the debate will be ruled out of order. Address your comments to the chair and not to another member (don't directly engage in debate with another member). An amendment to a motion may be amended, but an amendment to an amendment to a motion may not! I appeal from the decision of the chair. Yes Yes Yes (usually) No Decision of the chair I call for a division. Yes No No No Voice or hand vote A parliamentary inquiry, please. A point of information, please. Yes (if urgent) Yes (if urgent) Majority or tie None No No No Any motion No vote No No No Any motion No vote CDG - 07/23/02

3 ROBERT'S RULES OF ORDER PRINCIPAL RULES GOVERNING MOTIONS Order of Precedence Can interrupt speaker? Requires a second? Debatable? Amendable? Vote required? Applies to what motions Motion can have what applied to it (in addition to withdraw)? Can be Rule renewed? Section I. PRIVILEGED MOTIONS A. Fix the time to which to adjourn - (when privileged; only when another question pending). B. Adjourn - (loses privilege if in any way qualified or if effect is to dissolve assembly). C. Take a Recess - (privileged only when other business is pending. No Yes No Yes Majority None Amend Yes 16 No Yes No No Majority None None Yes 17 No Yes No Yes Majority None Amend Yes 18 D. Raise a Question of Privilege. Yes No No No No vote None None Yes 19 E. Call for the Orders of the day. Yes No No No No vote None None Yes 20 II. SUBIDIARY MOTIONS F. Lay on the Table. No Yes No No Majority I-D, E, II-K, III, appeal G. Previous Question. No Yes No No 2/3 Any debatable or amendable H. Limit or Extend Limits of Debate. No Yes No Yes 2/3 Any debatable pending motion I. Postpone to a certain time. No Yes Yes Yes Majority Main Amend, limited debate J. Commit or Refer. No Yes Yes Yes Majority No subsidiary motion K. Amend. No Yes Not always, not when main motion not debatable Yes Majority All but those that cannot be amended None Yes 28 None Yes 29 Amend Yes 30 Limit debate, amend L. Postpone indefinitely. No Yes Yes No Majority Main No subsidiary motion III. MAIN MOTIONS Yes 31 Yes 32 Any No 33 No 34 M. General. No Yes Yes Yes Majority None Any No 10 N. Take from Table. Yes Yes No No Majority Motion tabled No subsidiary motion O. Reconsider. Yes, by one of majority Yes Yes, except when main motion not debatable No Majority Specified Limit debate, postpone definitely P. Rescind, Repeal, or Annul. No Yes Yes No Majority All main All subsidiary motions Q. Renewal. In general at another session 38 R. Ratify. No Yes Yes Yes Majority Approval of action IV. INCIDENTAL MOTIONS Yes 35 No 36 No 37 None No 39 S. Point of Order. Yes No No No No vote Any error None No 21 T. Appeal. Yes Yes No No Majority or tie Decision of chair Yields to privileged motion & to motion to lay on table No 21 U. Suspension of rules. No Yes No No in. None None No 22 V. Object to consideration of question. Yes No No No 2/3 opposed to consideration W. Division of a Question. No Yes No Yes Majority Main & amendments X. Division of Assembly. Yes No No No None Voice or hand vote Any main None Yes 23 None No 24 None No D. S. C. --

4 ROBERT'S RULES OF ORDER (Hints on how to use them) Robert's Rules of Order are used to direct debate and keep discussions moving. You are encouraged to participate but should always behave in an orderly and professional manner. When speaking, identify yourself by name and chapter. Before any discussion can begin, a motion must be made and seconded. Seconding does not necessarily imply support of the motion but does allow the motion to be discussed. Before a motion can be made, the maker must be recognized by the Chair of the Convention. (All statements and discussion are directed to the Chair.) - After the motion is seconded but before discussion, the Chair restates the QUESTION. (The motion just made is now called the QUESTION.) - The maker of the motion is asked to speak to the motion first before general discussion. - Everyone can participate in the discussion, but you must wait to be recognized. Usually if you have spoken once in the discussion, you must wait until everyone else who wishes to speak has spoken once before being recognized again. To END DEBATE you can: move the previous question, "I move the previous question," call the question, "I call the question," call for the question, "I call for the question," move to end debate, "I move we end the debate, " move to vote, "I move we vote." - Calls of "Question!" by members from their seats are not motions for the previous question and are considered disorderly, especially if another member is speaking or seeking recognition. - After the motion, if there appears to be consensus, the Chair may elect to decide that the debate has ended and that the assembly will vote directly on the Question. Otherwise, the vote taken immediately after this motion has been moved and seconded decides whether to end discussion or not. The Question still requires a vote. VOTING: - Before voting, the Chair should restate the Question. The vote is usually a voice vote; those in favor vote "aye," and those opposed vote'"no." The Chair will usually make a decision on which side prevails based on his/her impression of the majority. - If you want a number count on a close vote, you call immediately for DIVISION of the assembly. The vote will then be taken again, and the votes will be counted. If you have a REQUEST or INQUIRY to make, you may do so at any time as follows. You can even interrupt a speaker if your request or inquiry relates to the business being discussed. - Parliamentary Inquiry - directed to the Chair in order to obtain information on parliamentary procedure, e.g., to make an appropriate motion, raise a proper point of order, understand the parliamentary situation, or understand the effect of a motion. - Say, "A parliamentary inquiry, please," and wait to be recognized before stating your inquiry. - Point of Information - directed to the Chair or through the Chair to another member; relates to business at hand but not to parliamentary procedure. - Say, "A point of information, please," and wait to be recognized. - You may ask the Chair a question or ask the Chair if the person who has the floor or any other member will accept a question from you. Question of PRIVILEGE - relates to personal privileges of the assembly, e.g., comfort (heating, air conditioning), lighting, noise, etc. - Say, "I rise to a question of privilege affecting the assembly." - You should only interrupt the speaker when the matter is urgent, e.g., "Mr. Chairman, I don't think we will be able to hear if we don't use a microphone," or Ms. Chairwoman, I think this is a question that should be considered in a closed meeting." - over -

5 - 2- ORDERS OF THE DAY - this is the agenda. - Calling for orders of the day requires the assembly to conform to the agenda, e.g., a time certain item. LAY ON THE TABLE - puts a pending question aside TEMPORARILY when something else of urgency has arisen. - No set time to bring it up again. - Consideration can be resumed at the will of the majority. TAKE FROM THE TABLE - can be moved when no other question is pending. POSTPONE INDEFINITELY - used to dispose of a question without a direct vote. COMMIT or REFER sends a pending question to a committee. AMEND Amendments to the question can insert or remove words, paragraphs, etc.; may be used to correct grammar or spelling, but should not be used to make a positive statement negative, since you can vote "no" on a positive statement. - Sometimes people use the term "friendly" amendment if the maker of the main motion accepts the amendment without requiring the assembly to discuss and vote on it. RECONSIDER Allows the assembly to bring back a motion for further consideration. - It can be moved only by a member who voted with the prevailing side, and that must be stated when the motion is made. - Reconsideration can be moved at any time, but motions such as "previous question" must be reconsidered immediately. RESCIND, REPEAL, or ANNUL Use to rescind or amend something previously adopted. RENEWAL Main motions are limited by the basic principle that an assembly cannot be asked to decide twice during one session the same, or substantially the same, question except through a motion to reconsider the vote. - Use to renew Orders of the Day, etc. RATIFY Used to confirm or make valid an action already taken that cannot become legally valid until approved by the assembly. POINT OF ORDER Used when a member thinks the rules of the assembly are being violated. - Say "Point of Order," or "Raise a Question of Order." - The Chair can decide or refer the point of order to the assembly for debate. APPEAL Applies to the ruling of the Chair. - Don't be afraid to appeal if you disagree with the Chair. This can relieve the Chair of responsibility in a tough decision by putting it before the assembly. - Chair states the question to the assembly, "Shall the decision of the Chair be sustained?" SUSPENSION OF RULES Used to suspend one or more parliamentary rules, e.g. Orders of the Day. OBJECTION TO CONSIDERATION OF A QUESTION - This enables the assembly to avoid a particular original main motion altogether when it believes it would be strongly undesirable for the motion even to come before the assembly. DIVISION OF A QUESTION If a main motion contains several points relating to a single subject, each of which is capable of standing on its own, the parts can be considered separately. - When making the motion you must clearly state the manner in which the question is to be divided.

6 WHATCOM COUNTY COURTHOUSE 311 Grand Avenue, Suite #105 Bellingham, WA Phone: (360) WHATCOM COUNTY CHARTER REVIEW COMMISSION January 5, 2015 TO: FROM: SUBJ: Whatcom County Charter Review Commissioners Jill Nixon, Commission Clerk Open Public Meetings, Records, and Training Requirements According to Washington State Statute, the Charter Review Commission is required to comply with the State Open Public Meetings Act, the State Open Public Records Act, and the State Open Government Training Act. The Open Government Training Act requires elected officials, including Charter Review Commissioners, to participate in training to improve trust in government and reduce liability through education and compliance about the principles of open government. Each Commissioners may satisfy this training requirement in one of three ways: 1. Read the three enclosed presentations, OR 2. Watch two videos at the State Attorney General website, here: Each video is minutes long, OR 3. Attend a presentation in March (date and time TBD) in the County Council Chambers by Nancy Krier, Assistant Attorney General for Open Government. This will be an opportunity to ask specific questions about how these requirements apply to the Commission. Once you have completed the training, you may sign the enclosed certificate and return to me. The County Human Resources Division will keep the signed certificates on file. Chief Civil Deputy Prosecutor Dan Gibson, the Commission s legal counsel, and I will be available to the Commission at the first meeting to discuss these requirements. Also, you may call or me anytime with your questions and concerns. DISTRICT 1: Todd Donovan, Eli Mackiewicz, Barbara Ryan, Thomas Stuen, Alison Walker; DISTRICT 2: Ken Bell, Chet Dow, Ben Elenbaas, Joe Elenbaas, Cliff Langley; DISTRICT 3: Yvonne Goldsmith, Wes Kentch, Richard May, Jon Mutchler, Eileen Sobjack

7 CERTIFICATE OF TRAINING [Name] Completed the following training: Open Public Records Act Training (RCW 42.56) Open Public Meetings Act Training (RCW 42.30) Date Training Received: [Date] Sponsor: Whatcom County Format: In-person training by: Nancy Krier, Assistant Attorney General Online Training (including webinars): Other format: Attorney General Open Public Records and Open Public Meetings Act Training Slide presentations I hereby certify that I received this training: Signature & Position or Title

8 Overview of Open Government in Washington State: Open Public Records and Open Public Meetings Prepared by Washington State Attorney General s Office Last revised: April 2014

9 Historical Open Government Principles "A popular Government without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or, perhaps both. Knowledge will forever govern ignorance... ~ James Madison "...a nation that is afraid to let its people judge the truth and falsehood in an open market is afraid of its people." ~ John F. Kennedy It has been said time and again in our history by political and other observers that an informed and active electorate is an essential ingredient, if not the sine qua non* in regard to a socially effective and desirable continuation of our democratic form of representative government. ~ Washington State Supreme Court 2 *indispensable action

10 Open Government Laws are often called Transparency Laws or Sunshine Laws This is because they shine light on government. U.S. Supreme Court Justice Louis Brandeis once famously said, Sunlight is the best disinfectant. 3 Transparency builds public confidence in government.

11 Washington - Two Different Statutes Open Public Records RCW Public Records Act (PRA) Open Public Meetings RCW Open Public Meetings Act (OPMA) 4

12 Intent Open Public Records The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created. The free and open examination of public records is in the public interest, even though such examination may cause inconvenience or embarrassment to public officials or others. Open Public Meetings The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created. 5

13 History Open Public Records PRA passed via Initiative 276 in Formerly in RCW now RCW Applies to all public agencies, state and local. Does not apply to courts. Limited application to Legislature. Applies to public records which are defined to include writings. Records are open unless there is an exemption authorized by law. Open Public Meetings OPMA passed in RCW Minutes requirement in another law - RCW Applies to all multimember public agency boards and commission governing bodies, and their committees. Does not apply to courts. Does not apply to Legislature. Requires meetings of governing body to be open gavel-to-gavel, unless there is an exception authorized by law. 6

14 Touchstone: Open Public Records Records of public agencies are presumed open. PRA is to be liberally construed. Records or information in records can be withheld only by law (e.g. exemption in law). Open Public Meetings Meetings of agencies subject to the OPMA are presumed open. OPMA is to be liberally construed. Meetings or parts of meetings can be closed only by law (e.g. executive sessions). 7

15 Scope Open Public Records PRA applies to 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. Includes paper records, electronic records, s, overheads, photographs, CDs, microfiche, etc. Open Public Meetings OPMA applies to multi-member public state and local agencies, as follows: Any state board, commission, committee, department, educational institution, or other state agency which is created by or pursuant to statute, other than courts and the legislature. Any county, city, school district, special purpose district, or other municipal corporation or political subdivision of Washington. Any subagency of a public agency which is created by or pursuant to statute, ordinance, or other legislative act, including but not limited to planning commissions, library or park boards, commissions, and agencies. Any policy group whose membership includes representatives of publicly owned utilities formed by or pursuant to the laws of this state when meeting together as or on behalf of participants who have contracted for the output of generating plants being planned or built by an operating agency. 8

16 Withholding Records or Closing Meetings Open Public Records Withholding a public record or some information in a public record must be authorized by law. Only the exempt information can be withheld. Agency must cite basis and give brief explanation. Exemptions from disclosure must be narrowly construed. Open Public Meetings Closing a meeting or part of a meeting subject to OPMA must be authorized by law e.g., for listed purposes in OPMA. Agency must provide reason where required, e.g., announce reason for going into executive session. 9

17 Enforcement & Penalties Open Public Records PRA enforced by courts, for claims listed in PRA. RCW ,.565 Court can impose statutory penalties to be awarded to requester. Court will order payment of requester s attorneys fees & costs. Court can also order disclosure of all or part of withheld record, or non-disclosure of part or all of record. Open Public Meetings OPMA enforced by courts, for claims listed in OPMA. RCW ,.130. Court can impose a $100 civil penalty against each member. Court will award costs and attorney fees to a successful party seeking the remedy. Action taken at an improperly closed meeting can be declared null and void. 10

18 Risk Management Tips Open Public Records Agencies should: Establish a culture of compliance with the PRA, beginning with agency leadership and support. Review their PRA procedures. Review available resources; institute best practices. Keep updated on current developments in PRA; correctly apply law. Consult with agency s legal counsel. Train appropriate staff and officials about the PRA s requirements. > Legislature enacted training requirements in Chap. 66, 2014 Laws. > State Supreme Court said evidence of PRA training for agency staff can reduce penalties, & lack of training can increase penalties. Open Public Meetings Agencies subject to OPMA should: Establish a culture of compliance with the OPMA, beginning with agency leadership and support. Review their OPMA procedures. Review available resources; institute best practices. Keep updated on current developments in OPMA; correctly apply law. Consult with agency s legal counsel. Train members subject to the OPMA about the law s requirements. > Legislature enacted training requirements in Chap. 66, 2014 Laws. 11

19 Information Open Public Records Attorney General s Office has appointed Assistant Attorney General for Open Government to provide information about the PRA. AGO has issued Model Rules. AGO may provide technical assistance and training. AGO has an online Open Government Deskbook and other materials and resources on its website, including training resources. AGO can review exemption from disclosure cited in state agency records, and issue informal opinion. AGO can issue formal opinions (for qualified requesters). Open Public Meetings Attorney General s Office has appointed Assistant Attorney General for Open Government to provide information about the OPMA. AGO may provide technical assistance and training. AGO has an online Open Government Deskbook and other materials and resources on its website, including training resources. AGO can issue formal opinions (for qualified requesters). 12

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21 Open Public Meetings Act RCW Prepared by Washington State Attorney General s Office Last revised: April 2014

22 Washington s Open Public Meetings Act (OPMA) Passed in 1971 Requires meetings to be open to the public, gavel to gavel RCW

23 Purpose The people do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so they may retain control over the instruments they have created. ~ RCW

24 Purpose (Cont.) Public commissions, boards, councils, etc. listed in OPMA are agencies of this state that exist to aid in the conduct of the people s business. Their actions are to be taken openly and deliberations conducted openly. ~ RCW Act is to be liberally construed. ~ RCW The purpose of the OPMA is to allow the public to view the decisonmaking process. ~ Washington State Supreme Court 4

25 Open Government Laws Like the OPMA are Often Called Transparency Laws or Sunshine Laws This is because they shine light on government. U.S. Supreme Court Justice Louis Brandeis once famously said, "Sunlight is the best disinfectant. Transparency builds public confidence in government. 5

26 OPMA Applies To: Multi-member public state and local agencies, such as boards and commissions, as follows: Any state board, commission, committee, department, educational institution, or other state agency which is created by or pursuant to statute, other than courts and the legislature. Any county, city, school district, special purpose district, or other municipal corporation or political subdivision of Washington. Any subagency of a public agency which is created by or pursuant to statute, ordinance, or other legislative act, including but not limited to planning commissions, library or park boards, commissions, and agencies. Any policy group whose membership includes representatives of publicly owned utilities formed by or pursuant to the laws of this state when meeting together as or on behalf of participants who have contracted for the output of generating plants being planned or built by an operating agency. ~ RCW These are the public agencies subject to the OPMA.

27 OPMA Does Not Apply To: These entities: Courts Legislature Agencies not defined as public agency in OPMA, such as agencies governed by a single individual Private organizations These activities: Licensing/permitting for businesses, occupations or professions or their disciplinary proceedings (or proceedings to receive a license for a sports activity, or to operate a mechanical device or motor vehicle) Quasi-judicial matters Matters governed by the Washington Administrative Procedure Act, RCW Collective bargaining ~ RCW (1), RCW

28 Governing Body All meetings of the governing body of a public agency shall be open and public and all persons shall be permitted to attend any meeting of the governing body of a public agency, except as otherwise provided in RCW ~ RCW

29 What is a Governing Body? The multimember board or other policy or rulemaking body OR Any committee of such public agency when: the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment ~ RCW

30 What is a Meeting? Meeting means meetings at which the public agency takes action ~ RCW Physical presence not required can occur by phone or An exchange of could constitute a meeting if, for example, a quorum of the members participate in the exchange & discuss agency business. Simply receiving information without comment is not a meeting. Does not need to be titled meeting OPMA also applies to retreats, workshops, study sessions, etc. No meeting occurs if the governing body lacks a quorum. 10

31 Action Action means the transaction of the official business of the public agency and includes but is not limited to: Public testimony All deliberations Discussions Considerations Reviews Evaluations Final actions The requirements of the OPMA are triggered whether or not final action is taken. ~ RCW

32 Final Action Final action is a collective positive or negative decision, or an actual vote, by a majority of the governing body, or by the committee thereof Must be taken in public, even if deliberations were in closed session Secret ballots are not allowed ~ RCW , RCW

33 Travel and Gathering A majority of the members of a governing body may travel together or gather for purposes other than a regular meeting or a special meeting, so long as no action is taken. Discussion or consideration of official business would be action, triggering the requirements of the OPMA. ~ RCW

34 Regular Meetings Regular meetings are recurring meetings held in accordance with a periodic schedule by ordinance, resolution, bylaws or other rule. A state public agency must: Yearly, file with Code Reviser a schedule of regular meetings, including time and place Publish changes to regular meeting schedule in state register at least 20 days prior to rescheduled date On June 12, 2014, new agenda notice requirements apply to regular meetings under OPMA (see next slide). (These requirements are in addition to those that may be applicable in other laws outside the OPMA for particular agencies.) ~ RCW , RCW ; Chap. 61, 2014 Laws 14

35 Regular Meetings (Cont.) On June 12, 2014, new agenda notice requirements apply to regular meetings. Chapter 61, 2014 Laws (SHB 2105) amends the OPMA to require governing bodies to make the agenda of each regular meeting of the governing body available online no later than 24 hours in advance of the published start time of the meeting. The new law does not: Apply to agencies that do not have websites. Apply to agencies that employ fewer than 10 full-time employees. Restrict agencies from later modifying an agenda. Invalidate otherwise legal actions taken at a regular meeting where agenda was not posted 24 hours in advance. Satisfy public notice requirements established under other laws. Provide a basis to award attorneys fees or seek court order under OPMA if agenda is not posted in accordance with the new law. 15

36 Special Meetings A special meeting is a meeting that is not a regular meeting (not a regularly scheduled meeting). Called by presiding officer or majority of the members Notice - timing: 24 hours before the special meeting, written notice must be: Given to each member of the governing body (unless waived) Given to each local newspaper of general circulation, radio, and TV station which has a notice request on file Posted on the agency s website --- with certain exceptions in RCW (2)(b), if the agency (i) does not have a website, (ii) employs fewer than ten full-time equivalent employees; or (iii) does not employ personnel whose duty, as defined by a job description or existing contract, is to maintain or update the web site Prominently displayed at the main entrance of the agency s principal location and the meeting site (if not that same location) ~ RCW

37 Special Meetings (Cont.) Notice - contents: The special meeting notice must specify: Time Place Business to be transacted (agenda) Final disposition shall not be taken on any other matter at such meeting ~ RCW

38 Emergency Special Meetings Notice is not required when special meeting called to deal with an emergency Emergency involves injury or damage to persons or property or the likelihood of such injury or damage Where time requirements of notice make notice impractical and increase likelihood of such injury or damage ~ RCW (4) 18

39 Public Attendance A public agency can t place conditions on public to attend meeting subject to OPMA: For proceedings governed by OPMA, cannot require people to register their names or other information, complete a questionnaire, or otherwise fulfill any condition precedent to attendance ~ RCW Reasonable rules of conduct can be set Cameras and tape recorders are permitted unless disruptive ~ AGO 1998 No. 15 No public comment period required by OPMA 19

40 Interruptions and Disruptions The OPMA provides a procedure for dealing with situations where a meeting is being interrupted so the orderly conduct of the meeting is unfeasible, and order cannot be restored by removal of the disruptive persons. Meeting room can be cleared and meeting can continue, or meeting can be moved to another location, but final disposition can occur only on matters appearing on the agenda. More details set out in the OPMA. ~ RCW

41 Executive Session Part of a regular or special meeting that is closed to the public Limited to specific purposes set out in the OPMA Purpose of the executive session and the time it will end must be announced by the presiding officer before it begins; time may be extended by further announcement ~ RCW

42 Executive Sessions Specified purposes set out in OPMA. Includes, for example: National security Real estate Site selection or acquisition of real estate Lease or purchase Public knowledge would likely increase price Sale or lease Public knowledge would likely decrease price Final action selling or leasing public property must be take at open meeting Publicly bid contracts Review negotiations on performance Public knowledge would like increase costs Evaluate qualifications of applicant for public employment Meet with legal counsel regarding enforcement actions, litigation or potential litigation Other purposes listed in RCW ~ RCW

43 Executive Session to Discuss Agency Enforcement Actions, Litigation or Potential Litigation This executive session is not permitted just because legal counsel is present This executive session must address: Agency enforcement action Agency litigation or Potential litigation ~ RCW

44 Executive Session to Discuss Agency Enforcement Actions, Litigation, or Potential Litigation: Three Requirements Legal counsel representing the agency is present Purpose is to discuss agency enforcement action, litigation or potential litigation to which the agency, governing body, or a member acting in official capacity is, or is likely to become, a party Public knowledge regarding discussion likely to result in an adverse legal or financial consequence to the agency ~ RCW

45 Penalties for Violating the OPMA A court can impose a $100 civil penalty against each member (personal liability) Court will award costs and attorney fees to a successful party seeking the remedy Action taken at meeting can be declared null and void ~ RCW ; RCW ; RCW

46 Minutes RCW Minutes of public meetings must be promptly recorded and open to public inspection Minutes of an executive session are not required No format specified in law ~ RCW

47 OPMA Training A new law effective July 1, 2014 amends the OPMA to require members of governing bodies to receive OPMA training. Chapter 66, 2014 Laws (ESB 5964) ( Open Government Trainings Act ). They can take training sooner than July 1. Refresher training occurs no later than every 4 years. Training can be taken online, in person, or by other means. Training resources, videos, and more information about the Act (a Q & A ) are available on the Attorney General s Office Open Government Training Web Page: 27

48 OPMA Assistance The Washington State Attorney General s Office may provide information, technical assistance, and training on the OPMA. Contact Assistant Attorney General for Open Government. The Attorney General s Office may issue formal opinions about the OPMA for qualified requesters. The Attorney General s Office has helpful materials about the OPMA, and other open government topics and resources, on its website at The Attorney General s Office Open Government Training Web Page with training resources, videos and other materials is at: ~ RCW

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50 Open Public Records Act RCW Prepared by Washington State Attorney General s Office Last revised: April 2014

51 Washington s Open Public Records Act (PRA) Passed in 1972 Initiative percent of the popular vote RCW (formerly RCW 42.17) 2

52 Purpose The people do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so they may retain control over the instruments they have created. ~ RCW

53 Purpose (Cont.) The free and open examination of public records is in the public interest, even though such examination may cause inconvenience or embarrassment to public officials or others. Act is to be liberally construed. ~ RCW ; RCW It has been said time and again in our history by political and other observers that an informed and active electorate is an essential ingredient, if not the sine qua non* in regard to a socially effective and desirable continuation of our democratic form of representative government. ~ Washington State Supreme Court *indispensable action 4

54 Open Government Laws Like the PRA are Often Called Transparency Laws or Sunshine Laws This is because they shine light on government. U.S. Supreme Court Justice Louis Brandeis once famously said, "Sunlight is the best disinfectant. Transparency builds public confidence in government. 5

55 Touchstone: Public records of government agencies are presumed open. Records or information in records can be withheld only by law (e.g. exemption in law). Exemptions must be narrowly construed. ~ RCW

56 PRA Applies to Records of: State government agencies* Local government agencies* Limited extent to Legislature ~ RCW * And to agencies that are the functional equivalent of public agencies. PRA Does Not Apply to: Court records (court files) Private organizations or persons* *Unless, for example, the records are used or retained by a government agency. 7

57 Public Record Public record means: 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

58 Writing Writing includes handwriting, typewriting, printing, photostating, photographing, and every other means of recording any form of communication or representation including, but not limited to, letters, words, pictures, sounds, or symbols, or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, motion picture, film and video recordings, magnetic or punched cards, discs, drums, diskettes, sound recordings, and other documents including existing data compilations from which information may be obtained or translated. ~ RCW So, public record is broadly defined. 9

59 Note: Public Records Can Include records of agency business when they are created or retained by agency employees or officials on home computers or in non-agency accounts. 10

60 General PRA Procedures Under PRA, agencies must: Appoint a public records officer. Publish procedures describing certain agency organization, operations, rules of procedure, and other items listed in PRA. Adopt rules/procedures to: Provide full public access to public records, Protect public records from damage/disorganization Prevent excessive interference with other agency functions. Provide fullest assistance to requesters Provide most timely possible action on requests. If charging actual costs of copies of records, publish fee schedule. Maintain a list of laws the agency believes exempts or prohibits disclosure. Provide certain indexes of records. Make non-exempt records available for inspection and copying during customary business hours for a minimum of 30 hours per week, excluding holidays. Post customary business hours on the agency s website and make hours known by other public means. ~ RCW , RCW , RCW , RCW

61 Requests for Public Records Persons can request identifiable public records from public agencies. Requester can use agency public records request form. If agency request form not used, requester must provide fair notice that he/she is seeking public records. A request for information is not a request for records under the PRA. Requesters can ask to inspect records, or request copies of records. Agencies can adopt procedures explaining where requests must be submitted and other procedures. ~ RCW ; RCW , RCW , RCW

62 Agency Responses to Requests The agency has five business days to respond to a public records request. Agency response can: 1. Acknowledge receipt of the request and provide a reasonable estimate for a further response; or 2. Fulfill the request; or 3. Provide an internet address and link to the records on the agency s website (which fulfills part or all of the request); or 4. Seek clarification; or, 5. Deny the request with an accompanying written statement of the specific reasons. ~ RCW

63 Seeking Clarification An agency can seek clarification of a request if it is not reasonably clear, or does not request identifiable records. Remember: agency is to give fullest assistance. Agency should explain why it needs clarification, in order to provide fullest assistance to requester and to search for potentially responsive records. If requester does not respond to request for clarification, the agency may close the request. ~ RCW

64 Estimate of Time for Further Response An agency can provide an estimate of time for further response. Estimate is to be reasonable. It is a good practice to briefly explain why more time is needed to process a request. If challenged in court, it is an agency s burden to show why an estimate of time is reasonable. Factors may include, for example, time needed to: Get clarification if necessary. Search for records. More time may be needed if request is large or complex. Assemble and review records. Provide notice to affected third persons/agencies if necessary. Prepare an exemption log if necessary. Perform other essential agency functions, considering agency resources including staff availability. An agency can extend the time if needed. Again, it is a good practice to explain why. If an agency can t produce all the records at once (particularly for large requests), an agency can provide records in installments. ~ RCW , RCW , RCW , RCW

65 Searches An agency should read the request carefully to understand what records are requested. Clarify the request if needed. An agency can also ask the requester to suggest search terms. An agency must conduct an adequate search for responsive records. Consider all formats (paper, electronic, etc.) Consider records of current staff/officials, and former staff/officials, if potentially responsive. Consider possible locations (e.g., file cabinets, agency website, audio files, etc.) The search should be reasonably calculated to uncover responsive records. The search should follow obvious leads to possible locations where records are likely to be found. It is a good idea to document search efforts (locations, search terms used, etc.) The agency bears the burden of proof to show the adequacy of the search. ~ RCW

66 Installments Agencies can provide records in installments, particularly for larger requests. Agencies can request a deposit up front (not to exceed 10 percent). Agencies can provide an installment by providing links to records on its website. Note: Agencies are encouraged to post commonly-requested records on their websites. This: Makes records more accessible. Enables quicker agency responses. Enables requesters to choose to view or copy only those records they want. ~ RCW , RCW

67 Exemptions Records are presumed open. If a record, or part of a record, is withheld from the public, the agency must cite to an exemption in law and give a brief explanation. Exemptions are narrowly construed. The general rule is the agency withholds only the exempt information, and releases the rest. Exemptions must be authorized in law --- in PRA or other laws. ~ RCW , RCW , RCW

68 Exemptions (Cont.) When withholding part (redacting) or all of a record, agency must describe record by date, type, authors/recipients, and total number of pages. Agency must list exemption and give brief explanation. This information can be provided to the requester in an exemption log or in other formats, so long as the required information is provided. Common exemptions are certain information in student or employment records, attorney-client privileged information, pending investigative records in certain investigations, and protected health care information. Agencies are not generally authorized in the PRA to provide lists of individuals for commercial purposes. The agency bears the burden of proof to justify the exemption. 19 ~ RCW , RCW , RCW

69 Privacy There is no general privacy exemption in the PRA. If privacy is an express element of another exemption, privacy is invaded only if disclosure about the person would be: 1. Highly offensive to the reasonable person and 2. Not of legitimate concern to the public. This means that if information does not satisfy both these factors, it cannot be withheld as private information under other statutes. ~ RCW

70 Fees Agencies cannot charge fees to allow requesters to inspect records. Agencies cannot charge fees for searching, reviewing or redacting records. Agencies cannot charge a requester for staff salaries, benefits or general overhead or administrative costs, unless they are directly related to the actual cost of copying records (the charges must be reasonable, and documented). Agencies can charge fees for the copies themselves (15 cents per page, or actual costs). Agencies can pass along to the requester the cost of sending records to an outside vendor or service so the records can be copied. Agencies can charge for costs of mailing records (postage, shipping container, etc.) Agencies are to make their fee schedules available to the public. There may be other laws, outside the PRA, that permit an agency to charge fees for records. ~ RCW , RCW , RCW

71 Enforcement & Penalties PRA enforced by courts for claims listed in PRA. A court can impose civil penalties. No proof of damages required. A court is to consider the factors in requiring an agency to pay a penalty: Plus, a court will award the requester s attorneys fees and costs. Special penalty provisions and court procedures apply to lawsuits involving inmate requests. ~ RCW , RCW ; Yousoufian v. Sims 22

72 Penalty Factors A court must consider these nonexclusive factors in deciding whether an agency should pay a penalty: Mitigating factors (factors that can reduce a penalty): A lack of clarity in the PRA request. The agency's prompt response or legitimate follow-up inquiry for clarification. The agency's good faith, honest, timely, & strict compliance with all PRA procedural requirements & exceptions. Proper training & supervision of the agency's personnel. The reasonableness of any explanation for noncompliance by the agency. The helpfulness of the agency to the requester. The existence of agency systems to track and retrieve public records. Aggravating factors (factors that can increase a penalty): A delayed response by the agency, especially in circumstances making time of the essence. Lack of strict compliance by the agency with all the PRA procedural requirements and exceptions. Lack of proper training & supervision of the agency's personnel. Unreasonableness of any explanation for noncompliance by the agency. Negligent, reckless, wanton, bad faith, or intentional noncompliance with the PRA by the agency. Agency dishonesty. The public importance of the issue to which the request is related, where the importance was foreseeable to the agency. Any actual personal economic loss to the requestor resulting from the agency's misconduct, where the loss was foreseeable to the agency. A penalty amount necessary to deter future misconduct by the agency considering the size of the agency and the facts of the case. The inadequacy of an agency s search for records. 23 ~ Yousoufian v. Sims; Neighborhood Alliance v. Spokane County

73 Penalties Outside of PRA Penalties in Other Laws: There can be criminal liability for willful destruction or alteration of a public record. ~ RCW For state employees, penalties can be assessed under the State Ethics Law if an employee intentionally conceals a record that must be disclosed under the PRA, unless decision to withhold was in good faith. ~ RCW

74 Risk Management Tips Establish a culture of compliance with the PRA, beginning with agency leadership and support. Train appropriate staff and officials about the PRA s requirements. (See next slide). Review agency s PRA procedures. Review available resources; institute best practices. Review penalty factors. Keep updated on current developments in PRA; correctly apply law. Consult with agency s legal counsel. 25

75 Training A new law effective July 1, 2014 amends the PRA to require records training. Chapter 66, 2014 Laws (ESB 5964) ( Open Government Trainings Act ). Elected local and statewide officials, and records officers, are to receive records training on the PRA, and records management/retention under RCW They can take training sooner than July 1. Refresher training occurs no later than every 4 years. Training can be taken online, in person, or by other means. Training resources, videos, and more information about the Act (a Q & A ) are available on the Attorney General s Office Open Government Training Web Page: 26

76 PRA Assistance The Washington State Attorney General s Office has provided an explanatory pamphlet and other materials about the PRA. The Attorney General s Office has also published Model Rules. The Attorney General has also appointed an Assistant Attorney General for Open Government. The AGO can provide technical assistance and training. The Attorney General s Office materials about the PRA, and other open government topics and resources, are on its website at The Attorney General s Office Open Government Training Web Page with training resources, videos and other materials is at: The Attorney General s Office may also review a state agency denial of a record when the agency concludes the record is exempt. The Attorney General s Office may issue formal opinions about the PRA for qualified requesters. ~ RCW , RCW , Chap. 66, 2014 Laws 27