HomeMy WebLinkAbout01/27/2026 - Regular - Additional Doc-Elected Officials Training
Open Government Training
Presented by:
Charlotte Archer
Jen to take intro
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Legal Team
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City Attorney (by contract):
Charlotte Archer
Email: carcher@insleebest.com
Inslee Best Team, including but not limited to:
Jennifer Robertson (Land Use)
Email: jrobertson@insleebest.com
Kathy Weber (HR)
Email: kweber@insleebest.com
Who does the City Attorney represent?
City as a whole
Serve as General Counsel to the Organization
Not private attorney to any one party
Who manages the City Attorney?
While the City Attorney works for the organization, the City Attorney is typically managed by the Executive Branch.
However, the ethical duties means that the Attorney will not typically “take sides” between the legislative and the executive branch as they office serves the organization as a whole.
Also talk about Inslee Best here
Large Municipal Department
Full Service Law firm
12 Cities / 40+ Special Purpose
Additional Special Counsel Cities
Jen to start, Charli to talk about herself
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There is a lot to learn, and a lot to read
Today we will cover:
Open Government Training
Open Public Meetings Act
Public Records Act
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Charli to layout
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Open Government Training
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Open Public Meetings Act
Chapter 42.30 RCW
Public Records Act
Chapter 42.56 RCW
Since 2014, mandated training requirements for OPMA and PRA
Must complete training no later than 90 days from taking oath of office or assuming duties.
“Refresher training” must be completed every 4 years
Training must be consistent with Attorney General’s Model Rules for compliance:
https://www.atg.wa.gov/opengovernmenttraining.aspx
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What Constitutes a “Meeting”?
A "meeting" under the OPMA occurs when a quorum of a governing body (including certain kinds of committees) gathers with the collective intent of transacting the governing body's business.
In order to be valid, resolutions, rules, regulations, orders, and directives must be adopted at meetings conducted in compliance with the OPMA. RCW 42.30.060. This means the action
will be invalidated if it occurs at a meeting in violation of the OPMA.
Meetings do not require physical presence. Meetings can occur by telephone, email, text, or other electronic media.
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Regular meeting: meeting held according to a schedule adopted by ordinance, resolution, order, or rule set by the governing body or statute. RCW 42.30.070.
Special meeting: any meeting that is not a regular meeting. Must have specific notice, can only take actions allowed by law (Ex. second class cities and towns cannot approve payment
of money at a special meeting. See RCW 35.23.181 and RCW 35.27.270), can only take final action on matters identified in the meeting notice. RCW 42.30.080.
Emergency meeting: meeting called to deal with an emergency involving actual or potential injury or damage to persons or property, when notice impractical and would increase the likelihood
of such injury or damage. Still must be open to the public. RCW 42.30.070.
Executive session: a portion of a regular or special meeting for one of the purposes outlined in RCW 42.30.110(1)(a)-(o) where members of the public are excluded.
Closed session: like an executive session, but limited to collective bargaining, licensing, quasi-judicial deliberations and APA matters. RCW 42.30.140.
What types of meetings are subject to the OPMA?
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Key Reminders:
All meetings of governing bodies of public agencies must be open to the public without any conditions for attendance. RCW 42.30.030 & .040.
No meeting takes place, and the OPMA does not apply, if the public body lacks a quorum.
Different types of meetings (regular and special) have differing rules, and specific notice requirements (24 hours). RCW 42.30.070, 42.30.077, and 42.30.080.
Executive sessions must be specially announced (topic, time, and post-action) and must be limited to specific topics. RCW 42.30.110
Voting by secret ballot prohibited. RCW 42.30.060(2).
Meeting agendas must be made available online no later than twenty-four (24) hours in advance of the meeting, unless the agency does not have a website or has fewer than 10 FTEs. RCW
42.30.077
Must maintain minutes (not required for an executive session). RCW 42.32.030
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What Constitutes an “Action”?
“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, review, evaluations, and final actions.
“Final action” means a collective positive or negative decision, or an actual vote by a majority of the members of a governing body. Final action MUST be taken in a meeting open to
the public.
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OPMA: Who Must Comply?
Governing bodies of public agencies: city and town councils, boards of county commissioners or county councils, or special purpose district boards of commissioners.
Governing bodies of subagencies, including planning commissions, library boards, parks boards, and civil service commissions.
Certain committees of governing bodies that act on behalf of (exercise actual or de facto decision-making authority for) the governing body, conduct hearings, or take testimony or public
comment. May or may not include or consist of individuals who are members of the governing body. Citizens Alliance v. San Juan Co., 184 Wn.2d 428 (2015).
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Agendas must be posted 24 hours before the meeting. RCW 42.30.077.
At a regular meeting, any member may move to amend the proposed agenda by adding an item or by proposing any other change.
At a special meeting, only action that appears on the posted agenda may be taken. RCW 42.30.080(3).
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Limited Topics:
Real Estate: To select or consider acquisition of real estate and to consider the minimum price at which real estate will be offered for sale;
Appointment of Elected Official: To evaluate the qualifications of a candidate for appointment to elective office (but final appointment decision must be public);
Litigation: To discuss with legal counsel representing the agency matters relating to enforcement actions, pending litigation, and potential litigation (but not just because a lawyer
is present);
And for other specific statutory purposes as set forth in RCW 42.30.110(1).
Before convening an executive session, the presiding officer must publicly announce the general purpose for excluding the public and the time the session will be concluded (i.e., to
discuss potential litigation with legal counsel).
Executive Sessions
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Proceedings concerning certain licensing/permitting matters and certain disciplinary proceedings (business, occupation, profession, sports activity, mechanical devices, motor vehicles).
Quasi-judicial proceedings between named parties as distinguished from a matter having general effect on the public or on a class or group.Tateuchi v. City of Bellevue, 15 Wn.App.2d
888 (2020).
Collective bargaining sessions (negotiations, grievance meetings, and discussions relating to the interpretation or application of a labor agreement). RCW 42.30.140(4).
Meetings of the governing body to plan or adopt the strategy to be taken in collective bargaining, professional negotiations, or grievance or mediation proceedings, or to review negotiation
proposals or proceedings while in progress.
What types of meetings are not subject to OPMA?
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Public agencies are (after 2022) required to hold one public comment period during any regular meeting at which final action will be taken.
Only one opportunity to speak at the entire meeting (and that opportunity can be at the end of the meeting).
Can limit the length of time allocated to each speaker and/or for all speakers, collectively.
Limited public forum: can require all comments relate to an item on the agenda.
Only required at a regular meeting where final action will be taken, which means a decision (by consensus or an actual vote) but does not include discussions / briefings / presentations
/ reviews. Not required at special meetings.
Exception remains for actions that require a public hearing (budget, certain land-use actions, etc.)
(Remember: Robert’s Rules require efficient, effective business meetings)
Public Comment at Public Meetings
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Beware meeting outside of a public meeting: site visits, dinners, social gatherings, etc.
Avoid attending in groups of more than two members.
If three or more members attend, do not take “action,” including discussing any issue that may come before the City.
When in doubt, check with the City Attorney.
Meeting Outside of Meetings
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Serial conversations between smaller groups may be treated as a “meeting.”
Wood v. Battle Ground School Dist.,107 Wn. App 550, 564, 27 P.3d 1208 (2001) (exchange of e-mails among board members was a meeting under the OPMA).
OMPA restrictions apply regardless of the form of communication: texts, online comments, e-mails, phone calls, and in-person conversations all count.
The mere receipt of e-mail or social media is not automatically a meeting. Citizens Alliance, 184 Wn.2d at 443-44.
Must intend to meet to transact official business & must communicate about issues that may or will come before the Council for a vote. Zink v. City of Mesa, 17 Wn.App.2d 701 (2021).
Serial Meetings
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What’s the Risk?
City Liability: Fees and costs against the City. RCW 42.30.120(2).
Personal Liability: Civil penalties against violating members. RCW 42.30.120(1)(2).
$500 for first violation
$1,000 for subsequent violation
Recall: It is also a potential basis for recall action, In re Recall of Pepper, 189 Wn.2d 546, 558, 403 P.3d 839 (2017).
Invalidation of City’s action: Any action taken at a meeting which fails to comply with the provisions of the OPMA is null and void. RCW 42.30.060(1).
Loss of public trust and confidence
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Public Records Act
Basics
The PRA is a “strongly worded mandate for broad disclosure of public records."
It requires disclosure of all public records unless they fall within a specific exemption. RCW 42.56.070(1).
‒ Courts liberally construe the disclosure provisions and narrowly construe the exemptions.
‒ “The Act and these rules will be interpreted in favor of disclosure.”
A "public record" includes:
(1) any writing
(2) containing information relating to the conduct of government or the performance of any governmental or proprietary function
(3) prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.
RCW 42.17.020(36)
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A "public record," subject to disclosure under the Act includes:
(1) any writing
(2) containing information relating to the conduct of government or the performance of any governmental or proprietary function
(3) prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.
RCW 42.17.020(36)
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Scope of the PRA
A “writing” means handwriting, typewriting, printing, photostating, photographing, and every other means of recording any form of communication or representation… RCW 42.56.010(4).
A requester is entitled to all non-exempt records, and may request that electronic records be produced in electronic format.
See WAC 44-14-050(2).
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Electronic “Records”
It’s the content, not the form:
‒ Electronic public records may include text messages, online communications, Facebook & Instagram posts, “tweets”, and likely whatever other app you can download.
‒ Electronic public records must be retained pursuant to applicable retention schedules. WAC 434-662-030; see also WAC 434-662-140 (web content also must be retained).
‒ “Electronic records must be retained in electronic format and remain usable, searchable, retrievable and authentic for the length of the designated retention period. Printing and
retaining a hard copy is not a substitute for the electronic version unless approved by the applicable records committee.” WAC 434-662-040.
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5 days for a response (fulfill, clarify, or deny)
A request directed to an individual member, or staff, is still a valid request. If you get a request for records, forward it to the PRO right away.
Although staff coordinates and oversees compliance with the PRA, all members should be aware of and comply with PRA procedures and records requests.
Work closely with staff and the attorney when you receive a request or have questions.
How Requests Are Handled
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Conducting an
Adequate Search
Search all potential records locations (even if you think it will yield duplicates), and ensure you know the agency’s retention and deletion policies and practices:
“An agency cannot limit its search to only one record system if responsive documents are likely to be found in other systems. It is a best practice to disclose all copies of a responsive
record even if they are duplicates of the same record found elsewhere.”
Can’t play games – when in doubt, give it out!
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Personal Devices
(Don’t use them!)
Records from personal computer, phone, tablet, or other device can constitute public records.
Text messages of Pierce County Prosecutor sent on personal device may be public records if they relate to the conduct of government.
Call logs from personal cell phone may be public records if they relate to the conduct of government and are retained or used in the prosecutor’s official capacity.
But logs are not public records if they play no role in County business and County never uses them.
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You will be required to complete and sign an affidavit, following a search of your device.
“[A]n agency's employees or agents must search their own ‘files, devices, and accounts,’ and produce any public records, including ‘e-mails,’… that are responsive to the PRA request…
[A]ffidavits by the agency employees, submitted in good faith, are sufficient to satisfy the agency's burden to show it conducted an adequate search for records.”
West v. Vermillion, 196 Wn. App. 627, 636–37, 384 P.3d 634, 638 (2016), review denied, 187 Wn.2d 1024, 390 P.3d 339 (2017), and cert. denied, 138 S. Ct. 202, 199 L. Ed. 2d 115 (2017).
But if you do…
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Lawsuit to access social media posts by City Council member.
Are social media posts public records? Yes – If a post relates to public business (the work of the agency), then it is considered a public record in RCW 40.14.010.
When does the post relate to conduct of government? “Any information that refers to or impacts the actions, processes, and functions of government.”
When is the post “prepared, owned, used, or retained” by the agency? Prepared: within scope of role for agency because it was (1) required by position; (2) directed by agency; or (3)
furthered agency’s interests.
West v. City of Puyallup, 2 Wn. App. 2d 586, (2018)
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Former council member sought records stored on current and former council member’s private devices on “external channels” – WhatsApp, Signal, Slack, Telegram, etc.
City requested current and former council members named in the request to conduct a search, provide any records, and complete a Nissen affidavit.
Requestor questioned the validity of the affidavits submitted, argued City should have obtained the phones and conducted forensic evaluation.
Messages sent on WhatsApp, Signal, Slack, Telegram, etc. ARE public records subject to retention and production.
Valderrama v. City of Sammamish (COA Div. 1, 12/6/24)
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Public record requests for City Councilmember’s on social media, including Nextdoor.
City investigation confirmed posts were public records; Councilmember refused to produce them.
City Council authorized lawsuit against Councilmember, seeking: (1) order to produce records; and (2) order to comply with records retention policy and produce records moving forward.
Set for trial, but motion for protective order recently denied.
City of Spokane Valley v. Merkel, Spokane Superior Court Case No. 2520071032 (2025)
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Takeaways, Tips, and Tricks:
Records from personal computer, phone, tablet, and social media can constitute public records.
Consider all of your options:
Embrace official accounts and devices, backed up by software, OR
Adopt and embrace a policy that requires back-up for personal devices by the device-holder, OR
Prohibit use of personal accounts/devices for agency business
If retention is delegated to elected official, official must be adequately trained.
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Know what to retain, and what to delete:
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Know what to retain, and what to delete:
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Segregate Public
& Personal Records
All members should observe best practices with respect to electronic public records, including:
Segregate e-mail and other communications used for City business from those used relating to personal business;
Ensure City documents are segregated from personal documents on personal devices or home computers;
Ensure e-mails and other electronic documents that are public records are transferred to an organized, secure, and accessible filing system for retention, in such a manner that preserves
metadata;
Comply with retention time periods, both in terms of saving and deleting records; and
Be prepared to produce public records in response to a records request.
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The PRA affords trial courts considerable discretion to fashion appropriate penalties for violations of the act.
Basis for recall and personal liability
Costly litigation, liability for City, and loss of trust
Fees can be significant.
$2.5 million – City of Tacoma
$371,340 – Yousifan v. Office of Ron Sims
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Consequences of Violations
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Questions?
Charlotte Archer
Inslee Best
Email: carcher@insleebest.com
Phone: 425-455-1234
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Jennifer to spearhead questions
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