AGO to City of Palouse: Any policy prohibiting public comment on personnel issues of City staff has serious Constitutional implications

Tim Ford, Ombudsman for the WA State Attorney General's Office instructs Palouse Mayor that the City can not restrict comments on personnel issues during City's open comment period. A copy of the letter is posted below.

ATTORNEY GENERAL OF WASHINGTON
1125 Washington Street
SEPO Box 40100
Olympia WA98504-0100

March 24,2009

The Honorable Michael Echanove,
Mayor, City of Palouse

Dear Mayor Echanove:

I am the Attorney General's Open Government Ombudsman and I provide assistance to the public and agencies for compliance with the state Public Records Act and Open Public Meetings Act. I received a letter from the Boomerang questioning the city's policy prohibiting public comment on personnel issues of city staff. Any policy prohibiting comment on a specific topic would have serious constitutional implications. I would ask the city to consider my informal advice in this letter.

The ability of citizens to voice their opinions about the performance of the public employees and officials who serve the public is one of the cornerstones of a free and accountable government. Particular criticism of government conduct may irritate the city, but such criticism is protected by the First Amendment of the United States Constitution, and by Article I, Section 5 of the Washington Constitution. In the case of Mesa v. White, 197 F.3d 1041 (1 ot" Cir. 1999), a county refused to allow public comment and criticism about the county manager. The court found that the restriction was unreasonable, an attempt to silence opinions, and a pretext for censorship.

A municipality that deliberately allows a general public comment period during its meetings creates a limited public forum for constitutionally protected free speech. The city may not restrict speech it merely dislikes, but has some ability to limit public comment in a neutral manner. The city may set time limits or noise limits to public speech.

The Open Public Meetings Act allows the city to remove an individual if they are being disruptive. RCW 42.30.050. A municipality may adopt a policy to prohibit personal attacks such as insults if they lead to disruption of the meeting. Steinbz~vgv . Chesterjeld County Planning Comm'n, 527 F.3d 377 (4"' Cir. 2008). Yet even Steinbevg acknowledges that criticism may not be prohibited where the speech is directed on a substantive idea. Personal insults should not be conhsed with insulting criticism over the conduct of public officials or employees. Moreover, Steinberg does not allow the city to prohibit public comment on a particular topic when the public comments are neither personally insulting nor disruptive.

The United States Constitution reflects "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). If the city allows a general public comment period at its meetings but prohibits comment on personnel issues, then the prohibition should be repealed.

Sincerely,

TIMOTHY D. FORD
Open Government Ombudsman
Assistant Attorney General

Center for Justice launches Statewide Campaign targeting Illegal Secrecy in Government

The Center for Justice, based in Spokane, Washington, is launching a statewide project to enforce Washington's open-government laws.

To ensure that government's are abiding by the Open Meetings Act and other public disclosure laws, the Center for Justice plans to file lawsuits against government entities when officials are suspected of illegally withholding documents or conducting the public's business in secret.

Activists and some members of the media have expressed concern that our state's sunshine laws are not properly enforced -- due in part to numerous legal revisions over the years by the legislature which resulted in weaker sunshine laws; and, the lack of a formal enforcement body to enforce sunshine laws.

Currently, the state relies on private citizens, political organizations and non-profits, like the Center of Justice, Evergreen Freedom Foundation and the Washington Coalition of Governments to file complaints to enforce Public Disclosure laws.

Center for Justice Director Breean Beggs stated that the Center just wants to make sure government is following the law and remaining accountable to its constituents. Public meeting violations have been the first targets, because state law allows anyone to file a complaint in court, even if the plantiff doesn't live in the community where the violation took place.

The Center for Justice has filed lawsuits against 5 local governments accused of violating the Open Meetings Act. To date, the Center has settled three suits with the City of Ridgefield, the Port of Longview and the Yelm Fire District. All three entities made a contribution to a charity as part of their settlement.

The Arlington School District is fighting the Center's suit. the School District is outraged that they had never heard of the Center of Justice before it filed an action against them in court. (I'm not sure why that is relevant - but it was noted in one of the articles I read).

Julie Murray, a policy director for the Washington Association of Counties expressed concern that local governments, especially small counties, lack adequate information about the state's rules for conducting open meetings.

Personally, I wish the Center of Justice every success with this project.

State and federal law provides citizens with an administrative process to file complaints to enforce sunshine laws. Nevertheless, I'm astounded to see how badly individual citizens are treated by government officials and other citizens when they file a complaint to enforce our sunshine laws.

I can only imagine how angry people would be if the same logic was applied to individuals filing appeals with the Growth Management Hearings Board or other state boards charged with the duty of monitoring government compliance with state law.

Beggs tells us, " I think there is an implicit assumption by a lot of people that the government only has to follow the law the majority of the time... if that's all you expected of private citizens, there would be outrage."

Please click the link below to read Curt Woodward's article in the Spokesman Review: http://www.spokesmanreview.com/tools/story_pf.asp?ID=246436

Links for State Organizations that are working to protect open, transparent government.

Center for Justice: http://cforjustice.org/

Evergreen Freedom Foundation is also working hard to ensure that all candidates have a level playing field when running for public office.

Public Records Act Recommendations: http://www.effwa.org/main/article.php?article_id=2234

Evergreen Freedom Foundation: http://www.effwa.org/main/page.php?number=21&top=6

Washington Coalition of Open Government: http://www.washingtoncog.org/

Sunshine in Government Initiative: http://www.sunshineingovernment.org/

Public Records Act: http://apps.leg.wa.gov/RCW/default.aspx?cite=42.56

Open Public Meetings Act: http://apps.leg.wa.gov/RCW/default.aspx?cite=42.30

Sunshine Committee: http://www.atg.wa.gov/opengovernment/sunshine.aspx

City Ignores Citizen Concerns regarding the Conduct of Public Meetings

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
– James Madison, 1822. (Quote taken from the Washington State Attorney General Rob McKenna's website).

In regards to recent questions about the City of Bellingham’s commitment to upholding and protecting the public’s right to participate in government’s decisions. I find myself shaking my head and wondering - is it even remotely possible for City officials to reconcile the inherent, built-in conflict between the practical realities of politics, personal ambition, campaign paybacks and the democratic ideal of selfless public service?

Why do I ask? A local resident, Wendy Harris, recently submitted both written and verbal testimony regarding the City’s lack of compliance with the state-mandated SEPA DNS review process. She asserts that the City is required to withdraw the reissued DNS and send all four Agenda Bills 017849, 017850, 017851, and 017852 back to the Planning Commission.

It's been several days now, and Ms. Harris has not received so much as the courtesy of a phone call regarding her concerns about the SEPA DNS review process. Not from her City Councilor, not from the Mayor's office, not even from Tim Stewart.

Public office is a public trust - and "accountability" is the essence of public trust.

Laws and rules are appropriate when they concern the use of tax dollars, publicly owned property, facilities, and influence. Laws are needed to establish the minimum norms of behavior, clarify the responsibilty of government officials and staff, and to prevent abuse of public office.

Upholding the rules for public meetings isn’t an arbitrary decision. In fact, there is no surer way to guarantee a front page scandal than violations of the law, even technical ones. Thus, our elected officials and staff must not only understand public meeting rules and laws, they are required to enforce them.

Hypocrisy or inconsistency in applying the rules, even on small matters; can destroy the public’s trust and impede a public official’s ability to exercise leadership in the future.

It is imperative that elected officials understand the roles of their respective offices and their responsibility to respond openly and honestly to inquiries from members of the public. The City may not agree with Ms. Harris's position on the SEPA DNS, but refusing to even politely acknowledge her concerns about process/procedure is contemptible.

There are city and state laws that legally define a council member and mayor’s role; the role of the public and the rules for how public meetings are conducted.

Trust is a precious commodity in public service. Once lost, it's nearly impossible to regain. If the Council continues to ignore state and local meeting rules, then regular citizens like Mr. Harris might as well stay at home.

The personal rewards for public service can be tremendous - not monetarily - but by being able to contribute to the betterment of the community by having the opportunity to meet and work with many diverse, talented and dedicated individuals.

Public officials and staff should affirm the dignity and worth of the services provided by government and try to maintain a constructive, non-judgmental and practical attitude toward constituents and local issues.

Nor have I received a response to my request for information regarding the City's appeals process. (So much for peace of mind, accountability and transparency).

Fortunately, Attorney General Rob McKenna is working very hard to ensure that local governments understand and comply with laws and rules that govern public meetings. I'm including copies of two recent press releases, for readers to review.

Attorney General's Press Release(s) are attached:

OPINION: Government can be complicated, sunshine shouldn’t be

By Attorney General Rob McKenna
Special to The (Vancouver) Columbian for Sunshine Week

Tuesday’s Columbian brought news that the City of Ridgefield would be facing a lawsuit for alleged violations of the Open Public Meetings act. The city is one of five targeted for such suits this week, in honor of National Sunshine Week.

As both Attorney General and as a former King County Council member, I have always believed in the core principle of transparency in government as a means of building trust and demonstrating accountability.

In today’s complicated 24-7, high-tech world, maintaining transparency has become more complicated and time-consuming.
But that’s not a reason to abandon our goals. Rather, it becomes more important than ever to manage our records-tracking systems and to develop new ways to use technology to make government even more transparent.

According to The Columbian, the Ridgefield city council is “accused of twice illegally retreating into closed-door executive sessions in 2006.”

The Ridgefield City Council members are not the only ones facing concerns about improper executive sessions. The state Auditor has noted more than 450 instances over three years where executive sessions were an issue in their audits of local governments. Executive sessions are meetings where government officials meet behind closed doors to discuss highly sensitive issues such as personnel issues, real estate transactions and other issues as allowed under the Open Public Meetings Act.

This session, I joined Auditor Brian Sonntag in requesting legislation that would have required government entities to record executive sessions. Using technology to our advantage, Auditor Sonntag and I recommended capturing the proceedings in executive sessions on a digital audio recorder.

Such a law would provide government decision-makers some protection against claims of improper executive sessions, saving thousands of dollars in legal fees and arguments when disputes arise. A digital auditor recorder with more than 130 hours of storage and software to download the audio to a secure server costs as little as $60 and takes up as much room as a candy bar. Such a small investment could help assure government accountability and provide the public with peace of mind.

While the Legislature chose not to approve this idea this session, I expect Auditor Sonntag and I will pursue this again in the future.

Technology can also reduce the cost of transparency and support sustainability by allowing governments to search and prepare public records electronically. The Attorney General’s office has developed model rules on electronic records and developed new technology to better store and retrieve e-mail.

The electronic model rules help governments reduce the amount of paper documents they print for requestors by giving guidance on providing records electronically. With technology, thousands of pages of documents can be provided in an electronic format that helps reduce the amount of paper used and allows the requestor to more easily search for the information they are seeking.

The Attorney General’s Office has also implemented a new e-mail storage and retrieval system which resulted in national recognition for our IT director in Government Technology. This technology allows the agency to not only search and retrieve e-mail text but documents attached to that e-mail as well.

http://www.atg.wa.gov/pressrelease.aspx?id=19388

The recent Sunshine Week poll indicates that more than 90 percent of respondents feel open government is important both at the state and local levels. Let’s use technology in our favor and increase transparency for those we serve.

Attorney General Press Release:

OPINION: Wins and losses in the battle for transparency
By Attorney General Rob McKenna
Special to the Yakima Herald-Republic for National Sunshine Week

A recent National Sunshine Week poll indicates that more than 90 percent of respondents feel open government is important both at the state and local levels.

The question is how do our state and local government officials feel? Based on the outcome of the most recent legislative session, the answer is mixed.

Led by the American Society of Newspaper Editors, Sunshine Week runs March 16 through 22. An annual event, Sunshine Week emphasizes the public’s right to know what government is doing, and why.

As both Attorney General and a former King County Council member, I have always believed in the core principle of transparency in government as a means of building trust and demonstrating accountability.

Advancements in technology are providing more tools to help us achieve greater government transparency, but these tools need the support of government officials if they are to be truly effective.

This session, I was proud to support a new budget transparency measure requested by the Washington Policy Center and approved during the recent Legislative session. Senate Bill 6818, supported by every member of the Yakima legislative delegation, directs the state Office of Financial Management to develop a searchable Web site to help the public identify how the state is spending their money. Citizens need to be informed about the cost of government and where their tax dollars are being spent.

Now awaiting the governor’s signature, this bill will help the public quantify the priorities they have for government and better understand the choices government makes when revenues are tight. Score one point for open government.

As the Yakima Herald-Republic has reported, I also joined Auditor Brian Sonntag in requesting legislation (HB 3292) that would have required government entities to record executive sessions. Emphasizing technology once again, Auditor Sonntag and I recommended using a digital audio recorder to capture the proceedings in executive sessions. Those are meetings where government officials meet behind closed doors to discuss highly sensitive issues such as personnel issues, real estate transactions and other issues as allowed under the Open Public Meetings Act.

The state Auditor has noted more than 450 instances in just three years where executive sessions were an issue in their audits of local governments. The law is clear that officials must state why they are calling an executive session, and limit its duration to a fixed period, to help assure transparency.

A digital auditor recorder with more than 130 hours of storage and software to download the audio to a secure server costs as little as $60 and takes up as much room as a candy bar. Such a small investment could help assure government accountability and provide the public with peace of mind. At the same time, such a law would provide government decision-makers some protection against claims of improper executive sessions, saving thousands of dollars in legal fees and arguments when disputes arise.

Despite strong support from editorial boards like the Yakima Herald-Republic and by your local legislators, this bill did not pass. That’s one point against open government. I expect Auditor Sonntag and I will continue to pursue it in the future.

Wins and losses in the field of open government should be carefully tallied. Every citizen should know where their elected leaders stand on these issues and should urge them to support transparency at every opportunity.

That is the spirit of Sunshine Week.

AG Editorial: http://www.atg.wa.gov/pressrelease.aspx?id=19386

It's National Sunshine Week!

The people of this state do not yield their sovereignty to the agencies that serve them... The people insist on remaining informed so that they may maintain control over the instruments that they have created. —RCW 42.56.030

Other states value transparent government enough to impose steep fines on government officials who refuse to comply with public disclosure requests.

While the State of Washington's public disclosure laws are adequate, they lack incentives to ensure that public officials comply with the law. Unfortunately, posturing by government officials often prevents citizens and journalists from gaining access to public documents.

The Coalition of Open Government provides resources for citizens who are interested in learning more about Public Disclosure Laws and the Open Public Meetings Act in the State of Washington.

The Coalition tells us that "Sunshine Committee Voters approved the Public Disclosure Act by initiative in 1972. At the time, the act included only 10 exemptions from disclosure. Today, there are at least 300 exemptions (provided by Legislative staff). Attorney General Rob McKenna requested a bill during the 2007 Legislative session to establish a Blue-Ribbon Committee to review all exemptions to the Public Disclosure Act on an annual basis. State Bill 5435 became law on July 22, 2007 creating the Public Records Exemptions Accountability Committee. The "Sunshine Committee" will make recommendations to repeal or amend exemptions to the Public Records Act. The committee will be chaired by Thomas Carr, Seattle city attorney."

Newspapers in Education has a wonderful educational piece on Sunshine laws and Sunshine week, please click the link below to go to the site. It was created for use in the classroom, but contains a wealth of information for citizens who would like to learn more about public disclosure laws. http://www.washingtoncog.org/media/images/resources/newspapers_in_education.pdf

A list of additional resources and newspaper articles is located at the bottom of the page.

In honor of Sunshine Week, I am including for your review - excerpts from a letter released by the Washington State Auditor's Office regarding Open Public Meeting Act violations identified in a Washington State Auditor's Audit of State and local governments, boards and commissions. It is a great resource for individuals who are interested in learning more about potential Open Public Meetings Act violations. The complete document can be found here: http://www.washingtoncog.org/media/images/government/Open_Public_Meeting_Violation_List.doc
Washington State Auditor's Office
Open Public Meetings Act
Issues Identified 2004 – 2007

FINDINGS
Issues identified during the course of the audit significant enough to be included in the State Auditor's 2004-2007 Audit Report.

6/17/2005
Whatcom County Fire Protection District 14
In the previous audit, we issued a finding because the District did not retain public documents as required by law. The documents included minutes of the meetings of the Board of Commissioners and cash receipts. During the audit we determined some 2001 meeting minutes were not signed by the Board and did not indicate who attended Board meetings. Minutes for the 2002 meeting were missing. A resolution adopted in December 2003 was not mentioned in the meeting minutes.

MANAGEMENT LETTERS
(Issues identified in the audit that aren't significant enough to report as findings, but still warrant attention by the entity and are included in a separate letter to the entity)

2/2/2007
Whatcom County Fire Protection District No. 1
We found one bid opening was not documented as occurring during an open public meeting. We also found commissioners had been meeting to talk about personnel issues, but these meetings were not been announced and no minutes were taken.

15. 4/27/2007
Whatcom County Water District No. 7
We found no reference in meeting minutes to executive sessions. However, staff stated executive sessions were held.

8/4/2006
Skagit County Fire Protection District No. 13
We reviewed the District’s compliance with the Open Public Meetings Act and noted a resolution to increase the tax levy stated discussion regarding the increase took place during a Commission meeting; however the minutes from that meeting do not document that discussion. Discussions regarding purchase price of a piece of equipment were conducted in executive session; however purchase of equipment is not an allowable topic for executive sessions. We also noted two occasions in which the reason for executive session was not documented.

1/13/2006
Skagit Valley College
We noted four instances in which the College did not announce the reason for executive sessions at its Board meetings.

11/23/2005
Town of Concrete
We noted one instance in which the purpose of an executive session was not announced, four instances in which the reason given was not allowable, one instance in which no expected time to reconvene was given, and one instance in which the Council recessed in order to discuss an ordinance.

EXIT ITEMS
Issues identified in the audit communicated to the entity at the exit conference. Exit items typically are one-time occurrences; have been corrected by the end of the audit field work; and/or the tone of entity management’s response indicates the item will be corrected. We follow up in these areas in future audits.

In 281 instances, entities violated the Open Public Meeting Act by not stating or clearly documenting the purpose of executive sessions. The Act requires governing bodies to announce the purpose of executive sessions and to document the specific reason for executive sessions in meeting minutes.

In 168 instances, entities violated the Open Public Meetings Act by not documenting or stating in an open public meeting the expected duration of executive sessions. The Act requires the presiding officer to take both steps before convening an executive session.

In 31 instances, entities violated the Open Public Meetings Act by conducting an executive session for an unallowable purpose. In most cases the specific purpose stated for the executive sessions did not fit any of the purposes allowed by state law.

In eight, instances entities violated the Open Public Meetings act by going into executive session to discuss legal matters without an attorney present. State law requires the District's attorney to be present when public entities discuss potential litigation.

In 12 instances, entities violated the Open Public Meetings Act by conducting executive sessions before open public meetings officially began or outside of open public meetings. The Act requires an open meeting to be convened before an executive session can be convened.

In two instances, entities violated the Open Public Meetings act by taking action without a quorum present.

In nine instances, entities violated the Open Public Meetings act by taking action inside of an executive session. The law states executive sessions are allowed for the purpose of discussing personnel, but that salaries, wages and other conditions of employment generally applied to entity employees must occur in an open public meeting, as well as final action on the hiring and/or salary of an individual employee or class of employees or a decision to discharge an employee.

In eight instances, entities violated the Open Public Meetings act by not properly posting notice to the public for special meetings.

In seven instances entities violated the Open Public Meetings Act by not producing evidence minutes were taken or officially approved.

For additional information on Open Public Meetings Act Rules - please see:

http://www.washingtoncog.org/index.html

RCW and WACS - Open Public Meetings Act: http://apps.leg.wa.gov/RCW/default.aspx?cite=42.30&full=true

RCW and WACS - Public Records Act:http://apps.leg.wa.gov/RCW/default.aspx?cite=42.56&full=true

Need help accessing public documents? wcoghelp@washingtoncog.org
Or, AGO: http://www.atg.wa.gov/Records.aspx

Related Newspaper Articles:

The Olympian - Sunshine makes Government stronger, more accountable: http://www.theolympian.com/opinion/v-print/story/389098.html

The Kitsap Sun - Open Government must be protected: http://www.kitsapsun.com/news/2008/mar/16/editorial-open-government-must-be-protected/

The Spokesman Review - Executive Sessions do not have to go unrecorded: http://www.spokesmanreview.com/tools/story_pf.asp?ID=236143

The Seattle Times - Wistfully celebrating open government: http://blog.seattletimes.nwsource.com/edcetera/2008/03/wistfully_celebrating_open_gov.html

Find out who rates well for government sunshine - The Politics Blog from the Olympian: http://www.theolympian.com/campaigntrail/story/389969.html

The Columbian - Secrecy at Camas- Washougal Port: http://www.columbian.com/opinion/news/2008/03/03122008_In-our-view-Secrecy-at-Camas-Washougal-port.cfm

The Seattle Times - When it comes to Open Government a Sledge Hammer is sorely needed: http://seattletimes.nwsource.com/html/opinion/2004252378_riley03.html
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.–James Madison, 1822