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Ask MRSC PHD (Public Hospital Districts) Sample Issue


 
Ask MRSC: Public Hospital Districts
JUNE 2012: #
Month/Year
In the periodic Ask MRSC PHD (Public Hospital Districts) e-newsletter, MRSC consultants respond to questions posed by officials and staff of Washington public hospital districts. Submit your own question via our simple online form.
IN THIS ISSUE
1. Can the chair (or president) of the board of commissioners vote?
2. Our public hospital district has five elected commissioners. A different hospital district is holding a meeting with a Washington state senator and two state representatives and has invited other hospital districts to attend. The purpose of the meeting is lay out hospital concerns over proposed Medicaid cuts. If three or more of the commissioners attend this meeting, is this a public meeting such that we must notify our local newspaper and the public?
3. Is the board of commissioners required to establish their regular meeting schedule each year, or does the resolution establishing their schedule stand until the point the schedule is changed?
4. It is our understanding that "draft" minutes of regular and special meetings of the governing body of a municipality are considered to be public records and are subject to disclosure under Chapter 42.56 RCW. Our commissioners need to know at what step in the process of producing these minutes ... the minutes are required to be released if requested...
5. Can a public hospital district circulate a petition for signature by district officers and staff opposing state budget cuts and provide that petition to the state legislature?
 
1. Can the chair (or president) of the board of commissioners vote?

 

Yes. Ch. 70.44 RCW (the hospital district statute) does not refer to "chair," but rather, under RCW 70.44.050, to the president of the board of commissioners. In relevant part, RCW 70.44.050 provides:

... No resolution shall be adopted without a majority vote of the whole commission. The commission shall organize by election of its own members of a president and secretary, shall by resolution adopt rules governing the transaction of its business and shall adopt an official seal.... (Emphasis added.)

We found no provisions in Ch. 70.44 RCW that indicate that the commission president does not vote. As a practical matter, not allowing the commission president to vote would stymie many public hospital districts because many of them have only three commissioners.

   

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2. Our public hospital district has five elected commissioners. A different hospital district is holding a meeting with a Washington state senator and two state representatives and has invited other hospital districts to attend. The purpose of the meeting is lay out hospital concerns over proposed Medicaid cuts. If three or more of the commissioners attend this meeting, is this a public meeting such that we must notify our local newspaper and the public?

 

If a majority of the board of commissioners is going to participate in a gathering with commissioners from another hospital district, given the likelihood that this would be considered a "meeting" under the Open Public Meetings Act (OPMA), we would regard the gathering as a special meeting under RCW 42.30.080, such that the district would need to comply with the notice and other requirements in RCW 42.30.080. (Note that the assumption here is that the meeting is not being held at the same time as the district's regularly scheduled meeting and is therefore not a regular meeting under RCW 42.30.070.) Given the nature of the discussion at issue, it seems to us that this would constitute a "meeting" under the OPMA and, to give the commissioners the ability to actively participate in the gathering, we think the district needs to consider it a special meeting.

 

More generally, whether such a gathering in which a quorum (majority) of hospital district board commissioners participates would constitute a "meeting" under the OPMA depends upon whether the business of the hospital district would be discussed by the commissioners as part of the gathering. If the gathering in which a majority of the board participates is one in which the commissioners are merely being provided with information, and the commissioners are merely receiving the information and the business of the hospital district is not discussed, presumably such a gathering would not constitute a meeting under the OPMA. However, if a majority of commissioners participates and the commissioners will be discussing the business of the district as part of the gathering, such an activity would be a meeting under the OPMA.

 

Regarding what would constitute conducting district business if a majority is involved in such a gathering, under the OPMA a "meeting" means meetings in which action is taken. RCW 42.30.020(4). "Action," as referred to in that definition of "meeting," is defined as:

... 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. (RCW 42.30.020(3).)

Since a hospital district board of commissioners can transact business when a majority of its members are present, the board is conducting a meeting subject to the requirements of the OPMA whenever a majority of its members meet together and deal in any way with hospital district business. This includes simply discussing some matter having to do with district business. It is not even necessary that the commissioners be in the physical presence of each other for there to be a meeting subject to the OPMA. For example, it is possible for a meeting to occur through a discussion of district business by a majority of the board via telephone or email. See, e.g., Wood v. Battle Ground School Dist., 107 Wn. App. 550, 562 (2001).

 

Additionally, it is not necessary that a governing body take "final action" for a meeting subject to the OPMA to occur. As above referenced, RCW 42.30.020(3) defines "final action" as:

... 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.

Our MRSC OPMA publication is a good resource on such issues.

 

Another issue to consider here is whether the district can hold a meeting of the board outside of the district. The hospital district statute, Ch. 70.44 RCW, does not require the board to hold all of its meetings within the district. However, holding board meetings outside the district, except in very limited circumstances, would not be advisable because it may place an unfair burden on the citizens of the district if they want to attend the meeting. Perhaps such concerns could be alleviated if the meeting is broadcast, recorded, and/or streamed and made available to those unable to attend. As above explained, such a meeting would be considered a special meeting under RCW 42.30.080 (note the above clarification regarding the meeting not being held at the district's regularly scheduled time) and the district would need to comply with the notice and other requirements of RCW 42.30.080.

 

Of course, another option for the district here is to send less than a majority of commissioners to the gathering. In that case, the OPMA would not be implicated, as long as the commissioners sent to the meeting are not "acting on behalf of" the full commission.

 

We recommend that you also consult with the district's legal counsel about this matter.

   

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3. Is the board of commissioners required to establish their regular meeting schedule each year, or does the resolution establishing their schedule stand until the point the schedule is changed?

 

The regular meeting schedule remains the same until it is changed by the board of commissioners through adoption of a resolution or by amending its current bylaws.

 

The Open Public Meetings Act, specifically through RCW 42.30.070, provides that the board of commissioners "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 board adopts its regular meeting schedule for the year or otherwise by resolution or by amending its bylaws. If the board decides to change the regular meeting schedule during the year, it could do so but it would need to revise the schedule by either amending its bylaws or adopting a resolution. If the board makes such a change to the regular meeting schedule, the district needs to notify the media regarding the schedule and any revisions to the schedule. If the board changed any of the regular meeting dates other than by amending its bylaws or adopting a resolution, such a meeting would be regarded as a special meeting. Notice requirements and other rules related to special meetings are set forth in RCW 42.30.080. Related note: A board of commissioners also has the option of adjourning any particular regular meeting to a subsequent day and time, and can do so without adoption of a resolution or by amending the bylaws. The process for adjournment is described in RCW 42.30.090.

   

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4. It is our understanding that "draft" minutes of regular and special meetings of the governing body of a municipality are considered to be public records and are subject to disclosure under Chapter 42.56 RCW. Our commissioners need to know at what step in the process of producing these minutes - the [1] initial meeting notes, [2] first draft (board secretary), [3] first review (board chair and CEO), [4] final review (all commissioners via board materials) - the minutes are required to be released if requested. We would also appreciate understanding the source of law for whatever your interpretation is relative to our question, whether that source be statute, attorney general opinion, case law, or otherwise.

 

The more general question here (which encapsulates all your questions) is at what point do minutes of board of commissioner meetings become public records under the Public Records Act (PRA) (Ch. 42.56 RCW)? In our experience, understanding records retention implications as they relate to the PRA are very important. If it has not already done so, the district needs to implement policies that allow the district to properly retain and destroy records (see below) and effectively respond to PRA requests.

 

The first issue is whether the notes and/or drafts constitute a public record for retention purposes and under the PRA. Under the PRA, which defines "public record" broadly, the notes and/or drafts are a public record because they were prepared by the district and relate to the conduct of district business. See, e.g., RCW 42.56.010.

 

We consulted with one of the Electronic Records Management Consultants for the Washington State Archivist's Office about this issue who indicated that it is not the form of the record that is determinative, but rather the content of the record. It does not matter whether the record is a handwritten note, notes prepared on a laptop, or drafts otherwise prepared in electronic format. All of these forms of a record would constitute a public record in this situation because the record relates to the conduct of district business (i.e., notes and drafts prepared by district staff for meeting minutes).

 

The second issue is whether the record has retention value. We also spoke with the same Electronic Records Management Consultant about this issue who advised that the general rule is that once such handwritten or electronic notes and/or drafts are incorporated into the final meeting minutes, the notes and/or drafts likely have no retention value and can be destroyed. Note, however, as explained below, that if a PRA request is made for a record that could have otherwise been destroyed, that record cannot be destroyed while the PRA request is active.

 

The Records Management Consultant indicated that if the person taking the notes or preparing the drafts is capturing the substance of the meeting and not capturing everything that was said, and the substance of those notes or drafts is then incorporated into the meeting minutes, under Item GS50-02-05 (Rev. 0) (p. 124 of 150) of the Local Government Common Records Retention Schedule (CORE) Version 2.2 (December 2011), such notes and/or drafts would be regarded as transitory records that are to be retained no longer than needed for district business and can be destroyed once they are no longer needed. Regarding meeting minutes, the Records Management Consultant indicated that once the board adopts the official minutes, the notes and drafts that were incorporated into the adopted minutes would have no retention value and can be destroyed.

 

We also checked the specific records retention schedule that is applicable to public hospital districts [Public Hospital Districts (Version 5.0) (March 2011)] and we did not find any provisions that address such meeting notes or drafts specifically.

 

We will reiterate something else the Records Management Consultant also advised - always check with your district's legal counsel regarding such issues. Even if the notes or drafts at issue can be destroyed as transitory records, it could be that your district's legal counsel would want the records retained for some other reason, such as in relation to potential litigation.

 

A third issue to consider is whether, if a PRA request is made for such records, any exemption under the PRA applies to the record or information in the record. As indicated above, in such situations always keep in mind that if a PRA request is made for a record, that record cannot be destroyed while the request is active, even if the record did not have retention value and otherwise could have been destroyed if the PRA request had not been made. Here, for example, if the district has notes or drafts related to past meeting minutes that were not destroyed and a PRA request is made for such records, those records cannot be destroyed while the PRA request is active.

 

Regarding more generally notes and drafts related to meeting minutes and PRA exemptions, although there is an exemption under RCW 42.56.280 for preliminary drafts and notes, this exemption has been interpreted by courts quite narrowly. As explained on p. 17 of our PRA publication:

The Washington Supreme Court has determined that before an agency is entitled to rely on this exemption, it must show (1) that the records contain pre-decisional opinions or recommendations of subordinates expressed as part of a deliberative process; (2) that disclosure would be injurious to the deliberative or consultative function of the process; (3) that disclosure would inhibit the flow of recommendations, observations, and opinions; and (4) that the materials covered by the exemption reflect policy recommendations and opinions and not the raw factual data on which a decision is based. [Fn. 44] (PAWS v. UW, 125 Wn.2d 243, 256 (1994).)

We also explain on that same page:

Question: Are a clerk's handwritten notes, which are used to prepare the formal council minutes, exempt from disclosure? How about unapproved drafts of the minutes?

Answer: Neither is exempt. The clerk is merely making notes of what is said and done by the council at an open, public meeting. We recommend that any preliminary drafts of council minutes which are provided to the public be clearly labeled as preliminary drafts.

Given that the exemptions under the PRA are construed narrowly, it is likely the exemption in RCW 42.56.280 does not apply to draft meeting minutes because the draft minutes generally don't express opinions, and they clearly don't formulate or recommend policy.

 

Draft minutes are what they are: they are draft, not final or approved minutes. They could be labeled "draft" or it could be indicated that they have "not been approved by the board of commissioners." We think, though, that they are public records and there is no specific exemption that allows them from being withheld from copying or inspection. Additionally, since the penalties under the PRA can be severe for improper nondisclosure and, presumably, there is nothing in the draft minutes that could create liability for the district, it seems to us that disclosure makes practical sense.

 

This situation is a good example of the interconnection between records retention requirements and the PRA. Sound records retention policies enable a public hospital district to respond more efficiently and effectively to PRA requests because the district will be able to determine exactly what records it has retained and it will have appropriately destroyed records that no longer have retention value and are not needed by the district for some other reason (e.g., litigation or potential litigation). We recommend that the Public Records Officer of your district work closely with your district's legal counsel in developing sound retention policies regarding meeting minutes (and all other records).

 

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5. Can a public hospital district circulate a petition for signature by district officers and staff opposing state budget cuts and provide that petition to the state legislature?

 

We spoke with the Lead Political Finance Specialist for the Public Disclosure Commission (PDC). The PDC representative advised that it would not be permissible for a commissioner, the CEO, or other district employees to circulate such a petition on hospital district property or by using district resources (e.g., email). According to the PDC representative, the prohibition against engaging in lobbying activities in RCW 42.17A.635(2), which prohibits use of public funds "directly or indirectly for lobbying," is interpreted broadly by the PDC. The PDC representative also indicated, however, that the prohibition would not apply to what district officials and employees do on their own time, not on district property, and not using district facilities or resources.

 

The PDC representative also pointed out that it is appropriate for the district, through a policy adopted by the board, to authorize specific officers and/or employees, such as commissioners, the CEO, or other employees, to be the district's designee or designees to communicate the district's official position on issues to the legislature. RCW 42.17A.635(2) provides that no public funds may be used directly or indirectly for lobbying, although this prohibition has significant exceptions. For example, RCW 42.17A.635(2) provides:

... However, this does not prevent officers or employees of an agency from communicating with a member of the legislature on the request of that member; or communicating to the legislature, through the proper official channels, requests for legislative action or appropriations that are deemed necessary for the efficient conduct of the public business or actually made in the proper performance of their official duties. ... (Emphasis added.)

There is also an exception that allows in-person lobbying by commissioners (as the district's elected officials) on behalf of the district or in connection with a commissioner's powers, duties, or compensation. See, RCW 42.17A.635(5)(d)(v)(B).

 

Perhaps here a petition that has been prepared as above described (i.e., not using district resources) stating the concerns of district officials and employees regarding proposed budget cuts could be provided to the district's official designee or designees as part of the information and materials the designee/designees provide(s) to the legislature through the proper official channels as a request "for legislative action or appropriations which are deemed necessary for the efficient conduct of the public business or actually made in the proper performance of their official duties."

 

Note also that RCW 42.17A.635(3) explicitly allows the district to expend district funds for lobbying as long as certain conditions are met. RCW 42.17A.635(3) provides:

Any agency, not otherwise expressly authorized by law, may expend public funds for lobbying, but such lobbying activity shall be limited to (a) providing information or communicating on matters pertaining to official agency business to any elected official or officer or employee of any agency or (b) advocating the official position or interests of the agency to any elected official or officer or employee of any agency. Public funds may not be expended as a direct or indirect gift or campaign contribution to any elected official or officer or employee of any agency. For the purposes of this subsection, "gift" means a voluntary transfer of any thing of value without consideration of equal or greater value, but does not include informational material transferred for the sole purpose of informing the recipient about matters pertaining to official agency business. This section does not permit the printing of a state publication that has been otherwise prohibited by law. (Emphasis added.)

Under RCW 42.17A.635(3), the district can also hire a paid lobbyist to advance the interests of the district, as long as Ch. 42.17A RCW is complied with otherwise, including regarding reporting of lobbying expenditures.

 

We also considered some other issues related to this situation that provide additional context.

 

There is a provision - RCW 42.17A.635(4) - that prohibits use of agency facilities, directly or indirectly, to support or oppose an initiative to the legislature, unless an exception applies. "Initiative" is not defined specifically under Ch. 42.17A RCW, but it is impliedly defined under RCW 42.17A.005(4) which states:

"Ballot proposition" means any "measure" as defined by RCW 29A.04.091, or any initiative, recall, or referendum proposition proposed to be submitted to the voters of the state or any municipal corporation, political subdivision, or other voting constituency from and after the time when the proposition has been initially filed with the appropriate election officer of that constituency before its circulation for signatures. (Emphasis added.)

Here, the petition at issue relates to proposed legislation, and not to an initiative that will be submitted to voters, so RCW 42.17A.635(4) would not apply. The (above referenced) PDC representative concurred with this conclusion.

 

Another issue is whether this would be considered "lobbying." RCW 42.17A.005(30) provides:

"Lobby" and "lobbying" each mean attempting to influence the passage or defeat of any legislation by the legislature of the state of Washington, or the adoption or rejection of any rule, standard, rate, or other legislative enactment of any state agency under the state administrative procedure act, chapter 34.05 RCW. Neither "lobby" nor "lobbying" includes an association's or other organization's act of communicating with the members of that association or organization.

RCW 42.17A.005(28) defines "legislation" to include:

... bills, resolutions, motions, amendments, nominations, and other matters pending or proposed in either house of the state legislature, and includes any other matter that may be the subject of action by either house or any committee of the legislature and all bills and resolutions that, having passed both houses, are pending approval by the governor.

Based on these definitions, there could be situations in which certain kinds of advocacy would be considered lobbying even if, as here, there is not pending legislation. For example, in Peacock v. Public Disclosure Comm'n, 84 Wn. App. 282 (1996), the court addressed a situation involving a citizen committee that distributed informational materials and gathered signatures on a petition to create a new county. The court held that the committee's effort was intended primarily to influence legislation and was therefore a "grass roots lobbying campaign" subject to the PDC's disclosure requirements. Although the provision at issue there dealt with grass roots lobbying under RCW 42.17A.640, the court's broad interpretation of the word "influence" is instructive. The court concludes in part:

... Because the matter of creating a new county will be the subject of future legislative action if the Committee is successful, the petition drive is directed at legislation. (Id. at 289.)

The PDC representative with whom we consulted indicated that the PDC would likely consider the gathering of signatures for a petition that concerns action the state legislature may take at its upcoming session as an impermissible lobbying-related activity to the extent the activity is done on district time and/or property and through the use of, even indirectly, district resources.

 

What concerns us in the petition situation at issue here, consistent with the position articulated by the PDC representative, is that a court may broadly interpret RCW 42.17A.635(2), referenced above, which prohibits the use of public funds directly or indirectly for lobbying. It seems reasonable that in a situation in which no district funds are expended, there would be no violation of RCW 42.17A.635. But that will depend on how broadly a court would interpret "indirectly."

 

We recommend that the district focus on the allowable activities described in RCW 42.17A.635(2), (3), and (5), which provide some discretion on how to effectively communicate with the legislature. As we indicate above, the district has options regarding how best to communicate with the legislature on pending and proposed legislative action.

 

We recommend that each district also consult with their district's legal counsel regarding this issue. Additionally, it is advisable for districts to speak directly with the PDC to get a sense of their latest thinking regarding such issues.

   

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