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OPEN PUBLIC MEETINGS ACT |
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EDITORIAL: Meeting rules inconvenient for council; changes consideredBy Sharon Kivisto posted 07/07/2008
It turns out according to the staff report which will be presented Tuesday, July 8, the adopted procedures aren't necessarily meant to be followed and the OPMA can be interpreted by the county in ways contrary to the information posted on both the state Attorney General's and the Municipal Research and Services Center of Washington Web sites. Who knew? This is what is going on. The council holds its regular meetings at 10 a.m. on Tuesdays in Friday Harbor. The agenda is posted, the meeting is recorded, detailed minutes are kept. If a member of the public wants to hear the council discussion on a certain topic, they can show up at the posted time for the specific agenda item. The council also has been holding a staff/work session on Monday mornings beginning at 10 a.m. Before the charter was voted in, the three county Commissioners held a short staff meeting to set the agenda and to take care of routine housekeeping items. The clerk made sure the commissioners did not start conducting business. That has since changed.
Now the council conducts county business at both the Monday and Tuesday meetings despite the fact action can only be taken during regular or special meetings. Action includes discussion of county business. For example, recently the council was to make decisions on the Lodging Tax Advisory Committee's recommendations regarding disbursement of $315,000 in funds. The council discussed it on Monday. The next day, at least a dozen people attended the meeting expecting to hear the discussion. They heard an abbreviated version. They had a right to hear the whole discussion. This was not an isolated instance. What constitutes a regular meeting? The OMPA: A regular meeting is one that is held according to a schedule adopted by ordinance, resolution, order, or rule, as may be appropriate for the governing body. It also requires The governing body of a public agency shall provide the time for holding regular meetings by ordinance, resolution, bylaws, or by whatever other rule is required for the conduct of business by that body. The county charter sets out how the council will create the rules of procedure for meetings in Section 2.41. The Legislative Body shall enact by ordinance rules of procedure governing the time, place and conduct of its meetings and hearings and the introduction, publication, consideration and adoption of ordinances; provided, that the Legislative Body shall meet in open session regularly at least twice monthly. The county Council adopted Ordinance 21-2007 Section 6.5 which sets out how "the business of all regular meetings of the Council shall be transacted" ... "The County Council desires to allow a maximum opportunity for public comment." The ordinance also spells out how workshops should be conducted. The staff report tries to twist that section to make the current way of doing business fit. But if you insert the missing text back in:
...the argument falls apart. The words 'workshop' and 'regular meeting' aren't interchangeable. Workshops used to be held when the council wanted to spend a significant amount of time focused on one topic. The Monday sessions do not meet that definition. Contrary to the staff report, the Monday sessions do not qualify as regular meetings since they do not specify a time. A schedule and time is set for the Tuesday meetings. Another blow to the argument that the meetings were workshops. The MRSC Web site states: All meetings of a governing body are, under the Open Public Meetings Act, either regular or special meetings. It does not matter if it is called a "study session" or a "workshop" or a "retreat," it is either a regular or special meeting. Section 6.5 is the part that shouldn't be taken "literally" according to the staff report:
I guess, just because the charter said the council needed to adopt rules and procedures governing..."conduct of its meetings", no one said it needed to follow them. So why does this matter? Washington voters passed the Open Public Meetings Act in 1972. "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." (RCW 42.30.010.) It is becoming increasingly difficult for citizens or reporters to follow how or when decisions are being made in the county Council. For the county Prosecutor and the council to be spending time parsing the language to find ways to avoid holding meetings according to the council's own adopted procedures kind of misses the whole point of transparency in government. It would be refreshing to see them put down their defenses and set about doing the people's business in a more open manner. The issue is not agendas - which aren't required under OPMA - or the public's right to speak. It's about the idea of conducting the business of the county in a way that is accessible to its citizens not just easy on its councilmembers. STAFF REPORT:ISSUE: Shall the County Council consider the implications of declaring Monday meetings to be regular meetings and consider making a modification to the Rules of Procedure to clarify that the agenda section applies to the Tuesday regular meeting? POLICY DECISIONS: The arrangement of the meetings is in the Council discretion. By way of charter, that is memorialized in the Rules of Procedure ordinance. BACKGROUND Two local reporters, Sharon Kivisto and Jack Cory, have expressed concern in recent weeks that the Monday Council Workshop meetings have moved away from being agenda planning sessions and have become the forum for substantive discussions. As such, they feel the meetings should be conducted more formally and should be considered, for legal and agenda purposes "Regular Meetings." Kivisto has expressed concern that citizens who are interested in specific issues need to know that the discussion of the issue may take place over two meetings and that public input is not being received at the workshop when the substance of controversial issues may be discussed. FACTS & FINDINGSThe County Prosecuting Attorney’s Opinion is, "No action is required to comply with the OPMA (Open Public Meetings Act) . . . The meeting is regular because it is identified in the Council rules to occur every week. That is all that is necessary to make it "regular". He cited OPMA Section 21.3(2) which reads, in part: "...The Act does not give the public any rights other than attendance at meetings of governing bodies of public agencies. For example, the public has no right under the Act to speak at public meetings, although governing bodies may extend, and often do extend, a limited right to speak at meetings." He also cited section 21.4(1) entitled "Regular Meetings" Which requires agencies to identify the time and place where regular meetings will be held and requires the schedule to be formally adopted: "...local agencies, such as cities and counties . . . must adopt the schedule "by ordinance, resolution, bylaws, or by whatever other rule is required for the conduct of business for that body." Later, Section 21.4(1) also states that there does not need to be an agenda: "...No agenda or other description of the business to be transacted is required by the Act for regular meetings." The rules of procedure for San Juan County Council Meetings were adopted in Ordinance 212007. In Section 2.2 it includes the Monday council session in its listing of "regular meetings." Section 2.2 Regular Meetings. Regular meetings of the Council shall be held on at least two Tuesdays of the month unless otherwise held or cancelled by action of the Council and shall normally begin at 10 a.m. Changes or postponements will be posted on the County web site and notice will be sent to the media who have requested such notice. Workshops, staff meetings, or study sessions will be held on the Monday preceding the regular Tuesday meeting, or at such times as are scheduled by the Council, unless cancelled or postponed in accordance with applicable state or local procedures. The Monday sessions are further described in section 2.10: Section 2.10 Workshops. Regular or special council meetings, or portions thereof, may be designated as workshops. Workshops need have no formal agenda, except when the session is called as a special meeting and may be conducted informally so long as such informality is not in conflict with these rules. (a) Unless it is a holiday, regular workshops of the Council shall normally begin at 10 a.m. on Mondays preceding each Tuesday’s regular meeting day. (b) Purpose. The purpose of workshop discussions is to make Council Members aware of impending business and allow informal discussion of issues that might be acted on at a future meeting. Any regular meeting may be continued to a workshop when time allows. Public comment is not normally allowed at workshops, although the Council may allow or request participation in the same manner as a regular Council... The Clerk of the Council or a deputy clerk shall keep notes of the discussion subjects with special attention to Council consensus or administrative issues (e.g., agenda, future budget changes, etc.) which may need more formal action in a later meeting.The Clerk of the Council or a deputy clerk shall keep notes of the discussion subjects with special attention to Council consensus or administrative issues (e.g., agenda, future budget changes, etc.) which may need more formal action in a later meeting. A member of the media has pointed out an apparent conflict between practice and the provisions of Section 6.5 which begins with the unqualified statement, "The business of all regular meetings of the Council shall be transacted as follows..." then proceeds to lay out the detailed agenda and public participation process the council uses at its formal Tuesday sessions. This enumerates such agenda items as Pledge of Allegiance, New Employee Introductions and Citizen Access Time. The Prosecutor felt that, in light of the language in the other sections of the Ordinance, Section 6.5 was clearly intended to refer only to the Tuesday meetings. He further pointed out that, even if literally construed, Section 1.3 of the Ordinance clearly indicates the intent is not to impose rigid rules for every meeting on the Council: Section 1.3 Public Use or Reliance Not Intended. Because these rules are designed to assist the County Council and not to provide substantive rules affecting constituents, it is expressly stated that these rules do not constitute land use regulations, official controls, "appearance of fairness rules," public hearing rules or other substantive rules binding upon or to be used by or relied upon by members of the public. These rules do not amend statutory or other regulatory (such as ordinance) requirements. Minutes: The OPMA doesn’t address the keeping of minutes for regular meetings, but RCW 42.32.010 says that agencies must maintain minutes of their meetings and make them available upon request. The minutes are required to, “at minimum, recite the significant actions of the agency." Since the Council Clerk began full recordings of Monday meetings since April of this year and is maintaining detailed minutes of the meetings, this requirement is clearly being met. Recommendations:
COUNTY CHARTER
ORDINANCE 21-2007
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