Governor rewrites Open Public Meetings Act and Public Records Act for duration of COVID emergency

Yesterday Governor Jay Inslee issued a proclamation that temporarily suspends several of the requirements of the Open Public Meetings Act and the Public Records Act until April 23 — though practically speaking, until the end of the COVID-19 crisis. The changes are allowances for the fact that most government employees are telecommuting, and many legislative bodies (including the Seattle City Council) are holding their public meetings by conference call.

Here are the requirements of the Open Public Meetings Act that the Governor’s proclamation suspends:

  • Meetings of a public agency must still be open and public, but the agency is no longer required to permit all persons to attend the meeting.
  • If members of the public are allowed to attend a meeting, they may now be required, as a condition of attendance, to register their name and provide other information. One assumes this is to allow forthe use of off-the-shelf remote video-conferencing software that requires all individuals to log in. The Governor’s procalamtion does state that “agencies are strongly encouraged to utilize a remote meeting option” that allows for joining without the need to register, “to the greatest extent possible.”
  • Requirements related to physical “rooms” and “sites” are removed.
  • State agencies (not local ones) no longer need to publicly announce their rescheduled meetings at least 20 days in advance.

And here are the suspensions to the Public Records Act:

  • Agency facilities do not need to be made available for copying public records.
  • Agencies do not need to take public records requests in-person.
  • Agencies do not need to make public records available for in-person inspection and copying during customary business hours.
  • The intent of the Public Records Act is no longer to provide “full” public access to public records; now it is only to provide “public access.” Consistent with the above changes, clearly the intent here is to relieve agencies of the requirement to have staff in the office, interacting in-person with the public, and providing physical access to public records.
  • Agencies are no longer required to provide an initial response to requests for public records within five business days. Now there is no timeline for responding to requests.  This is probably the most significant of all the changes in the Governor’s proclamation.

But the knife cuts both ways; the Governor’s proclamation also contains this bombshell:

Subject to the conditions for conducting any meeting as required above, agencies are further prohibited from taking “action,” as defined in RCW 42.30.020, unless those matters are necessary and routine matters or are matters necessary to respond to the COVID-19 outbreak and the current public health emergency, until such time as regular public participation under the Open Public Meetings Act is possible.

In essence, the Governor has decreed that agencies — including the Seattle City Council, the Hearing Examiner, and all city departments — may only take official actions that are either:

  • necessary to respond to the COVID-19 outbreak; or
  • “necessary and routine matters.”

Here’s the relevant definition of “action” from state law, which is very broad:

“Action” means the transaction of the official business of a public agency by a governing body including but not limited to receipt of public testimony, deliberations, discussions, considerations, reviews, evaluations, and final actions. “Final action” means a collective positive or negative decision, or an actual vote by a majority of the members of a governing body when sitting as a body or entity, upon a motion, proposal, resolution, order, or ordinance.

This could sideline much of the City Council’s workplan for the duration of the COVID-19 emergency, depending on how it chooses to interpret “necessary and routine matters.” Certainly the weekly approval of paying the bills qualifies. But most of the appointments to various city boards and commissions probably would not, as they are not “necessary.” Nor would an “Amazon tax” to pay for affordable housing and a Green New Deal — that is hardly routine — though the pivot by Council members Sawant and Morales to devote the first year of tax revenues to COVID response would sneak in under the other exception. Council member Strauss said earlier this week that he wants to move forward with a tree protection ordinance; that wouldn’t pass muster. Emergency spending approval to repair the West Seattle Bridge? Necessary, but likely not “routine.”  And there won’t be public deliberations on renewing the Seattle Transportation Benefit District, which faces an August deadline to get on the November ballot.

It’s a big deal for the rest of the city departments as well. SDCI won’t be able to make permit decisions. SDOT can’t make final determinations on transportation projects. The Hearing Examiner can’t issue decisions — or hold hearings, for that matter. The list goes on.

SCC Insight asked Council President Lorena Gonzalez for her interpretation of what the Governor’s order means for the City Council. Her response:

“I received a copy of the Governor’s proclamation regarding the Open Public Meetings Act last night. In consultation with our City Clerk and the City Attorney’s Office, I am in the process of understanding how it will impact the City Council’s business and operations for the duration of the Stay Home order.”  

“I hope to have a clear understanding of the impact of this most recent proclamation in the coming days so that we can provide the public, council members and Executive Departments, a clear understanding of the Council’s work program during these uncertain times.”

A spokesperson for the City Attorney’s Office declined to comment on the legal advice they are giving the Mayor and City Council, but when asked how it might affect the Hearing Examiner, said, “We just got this and we’re still figuring out exactly how to interpret it.  We’ve already reached out to the AG’s office seeking guidance.” 

Clearly there is much to be figured out still.  It would not be surprising if the Governor issues a clarification in the coming days, just as he did today on his previous “stay home” order that provided an exception for “essential workers” but missed many important categories and now has a Web form for business owners to ask whether they are “essential.”

Oh, the Governor signed a bill today legalizing sports betting — it’s not clear whether that is “necessary and routine” either.

 


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