Using Electronic Signatures During Emergencies
Editor's note: Updated on May 6, 2020 to reflect Proclamation 20-28.2, extending the prohibition on in-person legislative body meetings through May 31.
A local government’s ability to use scanned or electronic signatures is a helpful tool in normal times and a critical tool during a pandemic with a stay-at-home order in place. Rather than trying to coordinate wet ink signatures on a single document when employees are working from their homes, the better practice is for the local government to utilize scanned or electronic signatures. And, the good news is that few (if any) agency documents actually require a wet ink signature so long as an agency has a local policy in place.
Use of Electronic Signatures
Let’s start with formal electronic signatures. State and local agencies are authorized to use and accept electronic signatures, making them a good option for those agencies that can invest in the technology needed to use them. Beginning in 2016, local agencies were specifically authorized to use electronic signatures by Chapter 19.360 RCW, and effective June 11, 2020, Chapter 19.360 RCW is repealed and replaced by the Uniform Electronic Transactions Act (UETA).
UETA provides for essentially the same authority as Chapter 19.360 RCW with respect to a local agency’s use of electronic signatures: Unless state or federal law requires a wet signature, an electronic signature can be used and must be given the same legal effect as a wet signature. Therefore, typical local government records requiring a signature — such as contracts, meeting minutes, and claim vouchers — can utilize electronic signatures in lieu of wet signatures.
To use electronic signatures, the agency must first adopt a local policy. UETA provides some guidance on what to address in an agency policy:
- The manner and format in which electronic records must be created, generated, sent, communicated, received, and stored, and the systems established for those purposes;
- The type of electronic signature required, the manner and format in which the electronic signature must be affected, and the identity of/or criteria that must be met by any third party used by a person filing a document to facilitate the process; and
- The control processes that will be used to ensure the preservation, disposition, integrity, security, confidentiality, and auditability of electronic records.
Several cities have modified their policies to incorporate the UETA requirements. You can find examples of these policies in our Sample Document Library.
Common Questions about Electronic Signatures
Here are some questions regarding use of electronic signatures in general as well as during the COVID-19 pandemic.
Can the agency use a scanned version of a wet signature instead of adopting a formal electronic signature policy?
If an agency doesn’t want to formally adopt an electronic signature policy, can it rely on scanned versions of the wet signature? While I am not aware of legal prohibitions with this approach (again, unless a wet signature is required by another law), there are some practical issues that arise, such as whether the employee has the equipment required to turn a hard copy document into a PDF, as well as the quality and readability of home-scanned records.
Are there other low-tech options available?
Another low-tech option is when the individual authorized to sign on behalf of the agency (for example, the mayor) provides phone or email authorization for a different individual (for example, the city clerk) to sign on their behalf. To accomplish this, the mayor would ask the clerk to sign a particular document on their behalf, and the clerk would document both how the mayor authorized the clerk (for example, via email or phone) and the date on which this request took place. The clerk would then write the following in the signature line:
[Clerk’s signature] for [printed name of mayor] by [email or phone] authorization on [date authorized].
This may be a good option when the clerk wants to maintain the records in a central location and the mayor cannot scan the record with his or her signature.
Can’t we just sign the documents in person as we normally would?
Although Governor Inslee’s proclamations require individuals to stay home and prohibits meetings at physical locations through May 31, 2020, an individual with signature authority could constitute essential personnel for the purpose of signing documents that are necessary during the emergency. Therefore, an individual could go to the agency’s offices to sign necessary documents, if no alternatives are available.
During these strange times caused by the COVID-19 pandemic, whichever approach an agency chooses to take, it’s clear that business-as-usual is suspended for some period of time. Agencies should take steps to ensure that the processing of its contracts, claims, vouchers, and other critical documents are not delayed due to the inability to secure a wet signature. While adopting a formal electronic signature policy is a good option, other low-tech options provide an alternative for those agencies that do not have the technology required to use formal electronic signatures under UETA.
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