March 21, 2011

State Senate Passes Public Agency Website Bill, Raising Serious Concerns

The Washington State Senate has passed Substitute Senate Bill 5553, which requires that most public agencies owning and maintaining a website post certain information, including agendas, legislation and minutes.

SSB 5553 adds a new section to chapter 42.30 RCW, the Open Public Meetings Act. The text of SSB 5553 is available here.

While the goal of SSB 5553 is admirable, many public agencies have expressed serious concerns, including uncertainty about the finality of legislation, inability to amend legislation at regular meetings and the specter of personal liability for members of governing boards.

The State House of Representatives Committee on State Government and Tribal Affairs has scheduled a public hearing on SSB 5553 for 10:00 a.m. on Thursday, March 24.

The provisions of SSB 5553 and some of the concerns raised include the following:

Agendas

SSB 5553 requires the agenda of all regular meetings of the governing body of every public agency that owns and maintains a website to be posted 72 hours before a meeting, and the agenda of all special or emergency meetings to be posted 24 hours before a meeting. The posting must indicate if the agenda is in draft form.

Legislation

SSB 5553 requires that the text of any ordinance, rule or regulation under consideration at a meeting of the governing body of every public agency that owns and maintains a website be included on the website at the same time the agenda is posted.

Minutes

SSB 5553 requires that the minutes of all regular and special meetings of the governing body of every public agency that owns and maintains a website be posted within 15 business days after approval, and that all such postings remain on the website for one calendar year.

Roster

SSB 5553 requires that every public agency that owns and maintains a website post a roster of the names of all members of the governing body, identifying the positions, the constituency where applicable, and the start and end dates of their terms.

Exemptions

The provisions of SSB 5553 relating to agendas, legislation and minutes do not apply to counties with a population of less than 30,000 and the special purpose districts and school districts within those counties or cities or towns with a population of less than 8,000. Any action relating to the purchase of municipal bonds is also exempt from SSB 5553.

Emergency Declared

Because SSB 5553 declares an emergency, it takes effect on the date specified in SSB 5553, July 1, 2011, and is not subject to referendum.

 

Enforcement

RCW 42.30.060 provides that any action taken at a meeting of which notice has not been given according to the provisions of the Open Public Meetings Act is null and void. SSB 5553 adds several new notification requirements to the Open Public Meetings Act, thereby creating many more possibilities for actions taken by public agencies to be declared null and void. Any person who prevails against a public agency in the courts for a violation of the Open Public Meetings Act is awarded all costs, including reasonable attorney fees.

Finality of Legislation

SSB 5553 requires that minutes of meetings of public agencies that have been posted remain on the website for one calendar year. It is unclear what the effect of failure to maintain the minutes on the website is on legislation that was adopted at the meeting in question. If a public agency takes down its website for routine maintenance six months after legislation has passed, or if the website is hacked or the Internet service provider suffers some kind of failure, legislation adopted at the meeting for which such minutes were posted may be rendered null and void.

This could impact legislation that imposes property taxes, legislation that authorizes the purchase or sale of property or legislation that authorizes the payment of vouchers or the execution of a contract for longer than one year after adoption.

Regular Meetings

SSB 5553 requires that the text of any legislation under consideration by a public agency be posted on the website within 72 hours before a meeting.

Under current law, other than ordinances that require multiple readings, public agencies generally may take action on virtually any legislation at a regular meeting. They may “walk on” legislation and make amendments to proposed legislation. SSB 5553 would essentially eliminate regular meetings and make every meeting a special meeting, at which action can be taken only on matters that are on the agenda. If a public agency needs to amend legislation, it may have to wait until another meeting in order to take action, since any action taken that has not been posted 72 hours in advance may be null and void.

Application to Boards and Commissions

“Public agency” is broadly defined in RCW 42.30.020(1) and includes any state board, commission, committee, department, educational institution or other state agency that 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 the state; and any subagency of a public agency which is created by or pursuant to statute, ordinance or other legislative act, including planning commissions, library or park boards, commissions and agencies. “Governing body” is also broadly defined. Under RCW 42.30.020(2), it means the multimember board, commission, committee, council or other policy or rule-making body of a public agency, or any committee thereof when the committee acts on behalf of the governing body, conducts hearings or takes testimony or public comment.

Personal Liability for Governing Body Members

Under RCW 42.30.120(1), each member of the governing body of a public agency who attends a meeting of such governing body where action is taken in violation of SSB 5553, with knowledge of the fact that the meeting is in violation thereof, would be subject to personal liability in the form of a civil penalty in the amount of $100. “Action” is broadly defined in RCW 42.30.020(3) as the transaction of the official business of a public agency by a governing body, including receipt of public testimony, deliberations, discussions, considerations, reviews and evaluations as well as final actions. This penalty may be enforced by any person in court.

If you have questions or comments regarding SSB 5553, feel free to contact Marc Greenough in the Municipal and Public Finance Group of Foster Pepper PLLC.

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