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Home My WebLink About042924 email - FW_ PUBLIC COMMENT_ Healthier Together Task Force - Open Public Meetings - Response Commissioner Brotherton, I must respectfully disagree with your counsel. Legislative acts take many forms including but not limited to: ordinances, resolutions, rules, regulations, orders, proclamations, directives, and statements of consensus. The Commissioners have repeatedly stated that the BoCC must receive the work product of the HTTF before making any decision regarding the formation of a PFD. Those statements of commission policy regarding actions to be taken regarding a PFD are the functional equivalent of something that is “required by law”. Obviously, there is no “black letter law” such as RCW 36.70.620 <http://app.leg.wa.gov/RCW/default.aspx?cite=36.70.620> Official controls—Action by board. Upon receipt of any recommended official control or amendment thereto, the board shall at its next regular public meeting set the date for a public meeting where it may, by ordinance, adopt or reject the official control or amendment. to govern the actions of the BoCC with respect to recommendations from the HTTF; nonetheless, the only conclusion which a reasonable person could reach having heard the statements made and agreed upon by the commissioners is that the BoCC will not be able to act on the matter of creating a PFD unless and until the HTTF’s recommendations have been transmitted to the BoCC. i.e., the necessary antecedent principle applies. AGO 1971 No. 33: Thus, even if a particular advisory committee is "created by or pursuant to" a statute or ordinance, it will still not be governed by the act unless it possesses some aspect of policy or rule‑making authority. In other words, its "advice," while not binding upon the agency with which it relates (otherwise it would not be an advisory committee at all), must nevertheless be legally a necessary antecedent to that agency's action; e.g., as in the case of a planning commission which, we note, is expressly included as a "public agency" in § 2 (c),supra. See, AGO 1971 No. 8, copy enclosed, wherein we reviewed the relationship between a county planning commission and a board of county commissioners. The advice of the HTTF is a necessary antecedent to action by the BoCC. Thus, the HTTF possesses an aspect of policy or rule-making authority and is therefore, per the above, subject to the OPMA. Regarding “To maintain public access would require overtime security staff at significant cost”: So, the April 30 meeting will not have courthouse security past 4:30 p.m. because the doors will be locked? Your last-minute amendment to the Agenda / Meeting notice reflecting that is a disappointment. I note that counsel did not attempt to raise the question as to whether the HTTF is a public agency. It is. The will of the people of this state is that public agencies not conduct public business behind locked doors. The people insist on remaining informed and informing the people's public servants of their views so that they may maintain control over the instruments that they have created. “Acting on advice of counsel” does not provide unconditional immunity from legal consequences. Tom Thiersch Member, Washington Coalition for Open Government <https://www.washcog.org/> ==== [RCW 42.30.010 Open Public Meetings Act <https://apps.leg.wa.gov/rcw/default.aspx?cite=42.30&full=true> ] ==== ==== [RCW 42.56.030 Public Records Act <https://app.leg.wa.gov/RCW/default.aspx?ci te=42.56&full=true> ] ==== "The people of this state do not yield their sovereignty to the agencies that serve them. 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 and informing the people's public servants of their views so that they may maintain control over the instruments that they have created." ### P SAVE PAPER - Please do not print this e-mail unless absolutely necessary. Mr. Thiersch: Respectfully, we disagree that the Healthier Together Task Force’s (HTTF) is subject to the Open Public Meetings Act (OPMA). We have received legal advice contrary to your claim. The Healthier Together Task Force’s (HTTF) has no policy-making or rule-making authority, as required by RCW 42.30.020(2). The Open Public Meetings Act (OPMA) was not designed to cover groups which meet to collect information and make recommendations, but have no authority to make final decisions. The HTTF has no power to control how the BoCC or the City Council takes action, as they are not required to consider any of the recommendations of the HTTF. Accordingly, the HTTF is not a subagency of the BoCC or the City Council and is not subject to OPMA. We have reviewed the Attorney General Opinions (AGO) listed in your email and believe they support our position that OPMA does not apply. The closest AGO to the facts of this case is AGO 2018 No. 2, which holds a ferry committee is a subagency because of the requirement in RCW 47.60.330(1) that WSDOT shall consult the relevant Ferry Advisory Committee before changing ferry service levels. AGO 2018 No. 2, says that “a Ferry Advisory Committee’s advice is required by law before a ferry fare or service level change can ultimately be recommended or adopted by the Department or the Commission.” AGO 2018 No. 2 at 5 (emphasis added), https://www.atg.wa.gov/ago-opinions/application-open-public-meetings-act-ferry-advisory-committees-and-ferry-advi sory, Accessed April 25, 2024. According to AGO 2018 No. 2: A Ferry Advisory Committee’s advice is “legally a necessary antecedent to” the Department’s and Commission’s review of ferry fares or service levels. AGO 1983 No. 1, at 3 (quoting AGO 1971 No. 33, at 9). The Ferry Advisory Committees therefore “possess[] some aspect of policy or rule-making authority,” making them a “governing body” and a “subagency” subject to the Open Public Meetings Act. AGO 1971 No. 33, at 9. Id. The HTTF’s advice is not required by law before the Board of County Commissioners or the City Council take action. Accordingly, the HTTF is not subject to OPMA. Despite not being subject to OPMA, the HTTF is committed to transparency. Even the meeting on Tuesday, 4/30, is not physically open to the public, but viewable on zoom for all. To maintain public access would require overtime security staff at significant cost and reduce the HTTF’s ability to have geographic equity by having some meetings only on zoom outside normal county facility hours. We look forward to your continued participation as the HTTF works through this complex issue with transparency in front of mind, Greg Brotherton District 3 County Commissioner From: Tom Thiersch <tprosys@gmail.com <mailto:tprosys@gmail.com> > Sent: Thursday, April 25, 2024 10:03 AM To: Wendy Housekeeper <WHousekeeper@co.jefferson.wa.us <mailto:WHousekeeper@co.jefferson.wa.us> > Subject: PUBLIC COMMENT: Healthier Together Task Force - Open Public Meetings, requirement for physical meeting location ALERT: BE CAUTIOUS This email originated outside the organization. Do not open attachments or click on links if you are not expecting them. Please distribute this PUBLIC COMMENT to all members of the Healthier Together Task Force (HTTF). TO: The members of the Healthier Together Task Force (HTTF): I applaud the recently-revised version of the agenda for the first HTTF meeting (April 30, 2024), which now includes the legally-required physical meeting space (the county courthouse, at least for the April 30 meeting). Initially, it had been announced that HTTF meetings would be remote-only; that would have been a violation of the Open Public Meetings Act (OPMA). Meetings of the HTTF must be conducted in compliance with the OPMA, as I’ve outlined below; failure to fully comply with OPMA may subject each of you, as HTTF members, to a personal legal liability. The HTTF is a “public agency”, as that term is defined in the OPMA at RCW 42.30.020. It was created by a legislative act of the BoCC on April 8, 2024. The HTTF is a multimember board, the governing body of which is composed of the members of the task force. The agenda for the April 30, 2024, meeting of the HTTF states as one of its goals: “ * Report findings and recommendations to the Steering Committee, City of Port Townsend and Board of County Commissioners.” That HTTF goal, along with the repeated statements made by members of the Board of County Commissioners (BoCC) that the BoCC would have to receive the report(s) and recommendation(s) (“advice”) from the HTTF before making any decision about creating a Public Facilities District (PFD), makes it clear that that the advice of the HTTF is a necessary antecedent to the BoCC’s decision regarding the formation of a PFD. Refer to the Attorney General Opinions cited below. Therefore, even though it is characterized as “advisory”, the HTTF is subject to the OPMA. The OPMA requires, unless there is a declared emergency, that public agencies must provide a physical location for their meetings. The agenda for the April 30, 2024, meeting of the HTTF now correctly identifies the physical location to be used for that meeting. If the HTTF were to meet in violation of the OPMA, each member who attended such a meeting could be subject to personal liability in the form of a civil penalty in the amount of $500 for the first violation ($1,000 for each subsequent violation). RCW 42.30.120 To avoid the possibility of litigation and fines, the members of the HTTF should ensure that all future agendas and/or meeting notices clearly identify the meetings’ locations; such locations must be physically accessible to the general public with no preconditions to attendance. RCW 42.30.040 Please know that the above information is not intended to be a warning of legal action -- I’m simply detailing this information to better inform those HTTF members who might not be as familiar with our state’s legal requirements for the conduct of public meetings. Thank you for volunteering to participate in this important public process. Tom Thiersch Member, Washington Coalition for Open Government <https://www.washcog.org/> ==== [RCW 42.30.010 Open Public Meetings Act <https://apps.leg.wa.gov/rcw/default.aspx?cite=42.30&full=true> ] ==== ==== [RCW 42.56.030 Public Records Act <https://app.leg.wa.gov/RCW/default.aspx?ci te=42.56&full=true> ] ==== "The people of this state do not yield their sovereignty to the agencies that serve them. 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 and informing the people's public servants of their views so that they may maintain control over the instruments that they have created." ### P SAVE PAPER - Please do not print this e-mail unless absolutely necessary. Open Public Meetings Act (OPMA) https://apps.leg.wa.gov/rcw/default.aspx?cite=42.30&full=true Attorney General Opinions, references regarding advisory committees and their advice as “antecedent” to agency actions: AGO 2018 No. 2 https://www.atg.wa.gov/ago-opinions/application-open-public-meetings-act-ferry-advisory-committees-and-ferry-advisory AGO 1983 No. 1, at 3 https://www.atg.wa.gov/ago-opinions/applicability-open-public-meetings-act-services-and-activities-fees-committee AGO 1971 No. 33 https://www.atg.wa.gov/ago-opinions/meetings-public-applicability-open-public-meetings-act-state-and-local-governmental AGO 1971 No. 8 https://www.atg.wa.gov/ago-opinions/counties-zoning-laws-planning-commissions eb-dbb5-4ff8-a08d-6e48dd667e76", "@correlationTrail": "AssetId=f60172d0-a4d6-4218-b172-5635d67132f6;ExtractionId=e684b0e7-a0b8-4f18-96f2-39c09ad2dd0d;EntityId=1e2670eb-dbb5-4ff8-a08d-6e48dd667e76", "@extractionTimeUtc": "2024-04-29T22:23:17.3190434Z" }, { "@type": "ContactPoint", "@context": "http://schema.org", "@source": "TEE,52.0.0,20240416.04,b2bad0fb160f666d6d94336d80f029ef6417b8b8;en-US.ContextUrl,52.0.0,2021.5.5.1,2021.5.5.1", "@entityExtractionTrustLevel": "Scenario", "@outputVersion": "1.0", "@schemaOrgVersion": "1.93", "url": "https://www.washcog.org/", "url/anchorText": "Washington Coalition for Open Government", "url/prefixText": "unconditional immunity from legal consequences Tom Thiersch Member", "url/suffixText": "RCW", "url/urlTextSpan": { "@type": "TextSpan", "beginIndex": 3046, "length": 40 }, "@EntityId": "ee072ae4-ee85-4d5a-9ce5-cb9946f0de18", "@correlationTrail": "AssetId=f60172d0-a4d6-4218-b172-5635d67132f6;ExtractionId=e684b0e7-a0b8-4f18-96f2-39c09ad2dd0d;EntityId=ee072ae4-ee85-4d5a-9ce5-cb9946f0de18", "@extractionTimeUtc": "2024-04-29T22:23:17.3190434Z" }, { "@type": "ContactPoint", "@context": "http://schema.org", "@source": "TEE,52.0.0,20240416.04,b2bad0fb160f666d6d94336d80f029ef6417b8b8;en-US.ContextUrl,52.0.0,2021.5.5.1,2021.5.5.1", "@entityExtractionTrustLevel": "Scenario", "@outputVersion": "1.0", "@schemaOrgVersion": "1.93", "url": "https://apps.leg.wa.gov/rcw/default.aspx?cite=42.30&full=true", "url/anchorText": "RCW 42.30.010 Open Public Meetings Act", "url/prefixText": "Washington Coalition for Open Government", "url/suffixText": "", "url/urlTextSpan": { "@type": "TextSpan", "beginIndex": 3093, "length": 38 }, "@EntityId": "9f2ba29b-ef57-4d8d-8373-83d0aecfa186", "@correlationTrail": "AssetId=f60172d0-a4d6-4218-b172-5635d67132f6;ExtractionId=e684b0e7-a0b8-4f18-96f2-39c09ad2dd0d;EntityId=9f2ba29b-ef57-4d8d-8373-83d0aecfa186", "@extractionTimeUtc": "2024-04-29T22:23:17.3190434Z" }, { "@type": "ContactPoint", "@context": "http://schema.org", "@source": "TEE,52.0.0,20240416.04,b2bad0fb160f666d6d94336d80f029ef6417b8b8;en-US.ContextUrl,52.0.0,2021.5.5.1,2021.5.5.1", "@entityExtractionTrustLevel": "Scenario", "@outputVersion": "1.0", "@schemaOrgVersion": "1.93", "url": "https://app.leg.wa.gov/RCW/default.aspx?cite=42.56&full=true", "url/anchorText": "RCW 42.56.030 Public Records Act", "url/prefixText": "", "url/suffixText": "", "url/urlTextSpan": { "@type": "TextSpan", "beginIndex": 3145, "length": 32 }, "@EntityId": "7cd7d1d1-f6e0-4f5d-a8a8-c19a5cb55dbe", "@correlationTrail": "AssetId=f60172d0-a4d6-4218-b172-5635d67132f6;ExtractionId=e684b0e7-a0b8-4f18-96f2-39c09ad2dd0d;EntityId=7cd7d1d1-f6e0-4f5d-a8a8-c19a5cb55dbe", "@extractionTimeUtc": "2024-04-29T22:23:17.3190434Z" }, { "@type": "ContactPoint", "@context": "http://schema.org", "@source": "TEE,52.0.0,20240416.04,b2bad0fb160f666d6d94336d80f029ef6417b8b8;en-US.ContextUrl,52.0.0,2021.5.5.1,2021.5.5.1", "@entityExtractionTrustLevel": "Scenario", "@outputVersion": "1.0", "@schemaOrgVersion": "1.93", "url": "https://www.atg.wa.gov/ago-opinions/application-open-public-meetings-act-ferry-advisory-committees-and-ferry-advisory", "url/anchorText": "https://www.atg.wa.gov/ago-o", "url/prefixText": "No 2 at 5 emphasis added", "url/suffixText": "", "url/urlTextSpan": { "@type": "TextSpan", "beginIndex": 5092, "length": 28 }, "@EntityId": "eec2fad0-e66a-4167-aaad-9298df6e39cd", "@correlationTrail": "AssetId=f60172d0-a4d6-4218-b172-5635d67132f6;ExtractionId=e684b0e7-a0b8-4f18-96f2-39c09ad2dd0d;EntityId=eec2fad0-e66a-4167-aaad-9298df6e39cd", "@extractionTimeUtc": "2024-04-29T22:23:17.3190434Z" } ]