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Planning for the Expiration of the State's PRA and OPMA Waivers

May 28, 2020  by  Steve Gross
Category:  Open Public Meetings Act Public Records Act COVID-19

Planning for the Expiration of the State

Editor’s note: After this article was published, the state legislative leaders and the governor further extended most of the PRA and OPMA provisions but removed the prohibition on taking "action" at meetings. Effective June 1, agencies may resume taking “action” at meetings.

However, the general guidance below can still help local agencies prepare for when these proclamations do eventually expire. ​For the latest PRA and OPMA proclamations, see our COVID-19 Governor's Proclamations and State Guidance page.

Statutory waivers in Proclamation 20-28 for some of the requirements under the Public Records Act (PRA) and the Open Public Meeting Act (OPMA) are currently set to expire May 31. We understand that Governor Inslee has requested another extension of Proclamation 20-28 from the state legislative leadership, but the extension has not been granted at the time of this blog’s publication. This post provides local government agencies with some options for planning their first meetings in June, and it discusses the effect of the expiration of the state's OPMA and the PRA waivers.

Public Meetings

Because notices for meetings need to go out the week of May 26, and because the restrictions might be extended, the conservative approach would be to schedule the first meeting in June as a “remote” meeting, or to cancel or postpone the meeting until we have more guidance.

 Proclamation 20-28 specifically prohibits in-person meetings but also waived the “physical location” and “phone” requirements. If it is not extended local agencies must still comply with the governor’s phased reopening approach, and many agencies are still subject to Phase 1 restrictions that do not allow gatherings. Telephonic and remote meetings were allowed before the emergency, so agencies can continue to conduct meetings that way.

If your agency chooses a remote meeting, you should talk to your attorney about guidance from the Attorney General’s Office (AGO) that states there still must be a physical location for the public to attend the meeting — at a minimum, it should have a speaker phone that allows all persons physically attending the meeting to hear everyone else. This guidance is based on AGO 2017 No. 4. However, there is no specific statutory language or case law requiring an actual physical location and agencies must still follow the phased reopening approach. And, meetings still must be accessible to persons with disabilities. (See our FAQ on holding meetings for tips on ADA compliance).

If you go ahead with a meeting the first week of June, remember that the requirement that agencies only consider “necessary and routine” actions — or those actions “necessary to respond” to the current public health emergency — may expire May 31. For notice purposes, you may want to consider only putting items you’ve determined are “necessary and routine” or “necessary to respond” on the agenda. If this restriction expires after May 31 you can amend your agenda to add other items.

Editor's note: Proclamation 20-28.4 (issued May 29) extended most of the OPMA prohibitions and suspensions but removed the prohibition on taking “action.” Effective June 1, agencies may resume taking “action” at meetings.

RCW 42.30.040, which prohibits agencies from placing requirements on attendance, goes back in effect. Agencies should talk to their technology staff and attorneys about whether their remote attendance software and process complies with these requirements.

Presiding officers will still be able to exclude individuals or “clear” a physical or virtual meeting “room” if there is a disturbance. As mentioned earlier, agencies can continue to meet remotely without needing to invoke the provisions of RCW 42.30.070 related to emergency meetings. However, per RCW 42.30.080, the agency will have to post notices of the meeting’s location “at the main entrance of the agency's principal location and the meeting site if it is not held at the agency's principal location.” If the meeting is adjourned, that notice also must be physically posted (RCW 42.30.090).

Public Records

Under the emergency proclamation, agencies are not required to allow physical inspection of records during their normal office hours. They are not required to have them available for inspection for at least 30 hours per week. And, they do not have to respond to a request within five days (if the request was not made by electronic means).

If the proclamation expires, agencies should review RCW 42.56.080(2)’s requirement that:“[a]gency facilities shall be made available to any person for the copying of public records except when and to the extent that this would unreasonably disrupt the operations of the agency.”

Each agency will have to determine the extent to which allowing physical access to records for copying would “unreasonably disrupt” the agency’s operation if the offices have not been reopened to the public. And, each agency will have to determine whether its processes allow for inspection and copying for at least 30 hours per week. Finally, agencies will have to provide an initial response to all requests, no matter if they were received physically or electronically.

We continue to track the status of the proclamations and will publish a new “snapshot” after June 1, when we have more information.

MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.

About Steve Gross

Steve Gross joined MRSC as a Legal Consultant in January 2020.

Steve has worked in municipal law and government for over 20 years as an Assistant City Attorney for Lynnwood, Seattle, Tacoma, and Auburn, and as the City Attorney for Port Townsend and Auburn. He also has been a legal policy advisor for the Pierce County Council and has worked in contract administration.



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