[0:03] to the flag of the United States of America and to the Republic for which it

[0:09] stands one nation under God indivisible with liy and

[0:16] Justice you don't get to do that don't okay roll

[0:24] call Kathy myself Arie um any addition or corrections to

[0:31] the agenda I've got

[0:34] nothing here J do this I

[0:42] [Music]

[0:49] guess hello got you on speaker okay I switch to FaceTime with

[0:56] you so I can see you okay

[1:05] okay you can point him towards the the screen y we just opened and just did the

[1:11] Pledge okay that's great that's great good to see everybody too R go ahead uh

[1:18] I've got the agenda in front of me do we have roll

[1:21] call let me let you take over the meeting R

[1:26] okay so any additions or corrections to this evening

[1:31] agenda again no no okay so we need approval of the minutes

[1:37] dated January 17

[1:41] 2024 I've looked through I didn't see any changes is anybody in attendance see

[1:46] any changes no or

[1:49] Corrections okay just need a

[1:54] motion I guess I'll do it sure I move to accept the minutes of January 17th as

[1:59] written okay I'll second I'll

[2:05] second be we've got a motion a second to

[2:10] approve the minutes dat of January 17 2024 all those in favor say I I I I all

[2:18] those oppose motion carries okay old business

[2:24] continue discussion of RCW [Music]

[2:28] 35634

[2:32] yeah Russia can I comment on that sure um because uh the Planning

[2:40] Commission was formed by the state of Washington and this RCW is what kind of

[2:47] created the the Planning Commission for cities and and towns and stuff and in

[2:54] that uh RCW states that the commission you know

[3:00] shall hold the rules or shall hold the meetings for at least nine uh meetings a

[3:05] year and I think we've resolved that um it also

[3:12] states that it shall adopt rules for transactions of business and shall keep

[3:17] a written record uh I would like to make a motion

[3:21] and a prop proposal that we adopt the rule that all meetings and notifications

[3:27] will be sent to our private email app

[3:32] you can make any thing you want it's not going to stand up but you can make any

[3:38] motion you want what do you mean it's a public document and doing

[3:44] public business for for the city it goes to your city business uh email yeah Russ

[3:51] I'm not picking up the audio I'm G to switch back to just a phone call to you

[3:56] okay all right I'm GNA hang up and just get to the phone call

[4:08] okay got you on speaker okay so I didn't hear go ahead I

[4:13] said it you're receiving public uh business documents so it goes to the

[4:19] your city business email sending it to your uh your private

[4:24] email would create a public records nightmare if someone made a public

[4:28] records request because now it opens the door for

[4:32] intrusion into your personal

[4:40] life I'm fine with that but

[4:48] and okay

[4:54] second got a motion a second to use personal email for City business bu all

[5:00] those in favor say I I I all those

[5:07] oppose I'm AB okay so

[5:13] three one all right continue discussing Zilla Municipal Code section 2.48

[5:21] point10 addition of two

[5:27] members any comment on

[5:34] [Music]

[5:38] this

[5:41] say that the chairman shall create and fill

[5:54] off3 um we have a conflict in our

[6:00] [Music]

[6:09] IP I don't have any opposition to seven like from all the

[6:16] other I mean I don't know there is no conflict the website originally said

[6:23] seven the website was wrong that has been corrected what the Zilla Municipal

[6:28] Code says is live and that's what you got now if you'd like to ask city

[6:35] council to amend the ordinance to allow for seven you

[6:42] can did you hear that Jay Jay as the leaon can very well put that request

[6:47] before Council um Ardell said that was

[6:52] originally put on the website wrong that was corrected but it's the Zilla

[6:56] municipal code is correct it's only five but you're more than welcome as the

[7:01] liaison to the city council to go and request that before I would suggest a

[7:07] conversation with uh the mayor first but uh you're more than welcome to approach

[7:12] them about having the membership increase from 5

[7:19] to7 I don't know how that would benefit us did you hear

[7:24] that not entirely here's our dilemma

[7:29] and as a city administrator and every staff know we have rules

[7:52] regulations have now there's

[7:57] discre so I'm not sure I guess it I'd entertain a

[8:03] motion what does our our commission want to do do we want to have seven

[8:07] number um and I think that's where we're sitting right now until the Zill

[8:14] municipal code with our input is corrected I guess we can pick between

[8:20] five or seven that's that's the law we have didn't you say it had been

[8:25] corrected there was no conflict the website was wrong the website is not

[8:30] your uh your Doctrine the Zilla municipal code is the Zilla municipal

[8:36] code is correct it only has five in there so you don't get to pick between

[8:45] five and seven but you can go to city council and request that you have the

[8:50] membership amended so that seven can be on if that is your

[8:57] wish uh I

[9:15] think and I'm not aware Zill munici code been changed the Zilla Municipal Code

[9:21] says five the the conflicting document you

[9:26] showed was what was on the website

[9:30] the website has been

[9:39] corrected didn't you

[9:44] hear that closer to yeah yeah let me go ahead

[9:50] yeah all right can you hear me now Jay yeah go ahead okay so what you

[9:57] showed was you showed a screenshot of what was on the city website and then

[10:03] you also pulled the Zilla Municipal Code the Zilla Municipal Code says five the

[10:09] website said seven the website has been corrected to match the Zilla Municipal

[10:15] Code now if you guys vote to you know present a a request for an

[10:22] amendment to add members you're more than willing to do so if the if that is

[10:28] what the body wish I suggest having a conversation with the

[10:32] mayor first but if that's what this body wants to do you're more than welcome to

[10:38] to explore that yeah man I think I have to agree

[10:44] with on that uh I will refres my uh research on that and see uh what I was

[10:51] looking at prior to this but uh so that's that's pretty well and good news

[10:58] that at least webs has been changed so we get a little more accurate so I think

[11:04] at this time that issue have to be table meeting table okay okay we're going to

[11:13] table that and then we will move on to continue to discuss Zilla municipal code

[11:27] 248.50 which I which it sounds to me like is

[11:33] appointing appointment of officers and what the duties of that of

[11:39] those officers are yeah yeah I mean did you have any concerns about the the 2.48

[11:47] 50 no actually I actually like the way that it's written um and it looks like

[11:57] um points out the duties of chairman Vice chairman

[12:06] [Music]

[12:11] and one point that I want to point out in that

[12:18] 24.50 um the meetings will be called by the Planning

[12:24] Commission uh and uh

[12:30] the chairman shall proide over the cond of all the

[12:34] Mee and the Planning

[12:38] Commission in the future I will be making the

[12:41] agenda and I

[12:48] will did he have a position we believe the chair is in the

[12:55] wrong but again it's his prerogative if he wishes to to try to do that

[13:01] um again staff is only availed for actual business so if it's not something

[13:07] that is of direction did you see how the the city

[13:14] would get

[13:18] involved uh well the CCT if I'm wrong too but the city disagrees with the the

[13:24] position on that and has limited staff that's only available there's business

[13:29] to discuss that would be a fair

[13:35] assessment I'm I'm sorry that the the Cil Municipal Code States this I didn't

[13:40] write the code I just want to not be liable from not following the

[13:47] code and uh you know you look into this code a little bit more and

[13:54] uh uh you know there there's be and other

[14:01] things against members so I guess my hands are tied

[14:06] that

[14:10] exchange okay um we'll table that one because it doesn't sound like we're

[14:14] ready to do anything on that Arie you got any any input on

[14:20] that no I just don't not understanding why we're doing some of

[14:25] this like

[14:29] number of members and things like that I'm just start following the reasoning

[14:33] behind it can you hear him okay yeah um well

[14:38] like this whole phone thing is interesting U yeah I'm I would have

[14:42] loved Zoom but working on it now and Jay you correct me if I'm wrong Arie just

[14:46] said he doesn't understand why we're covering this stuff and I'm hoping I'm

[14:50] interpreting this right they're just discrepancies that we're trying to get

[14:54] cleared up okay yes I think there's been

[15:00] over the years we have just kind of Beed away from our rules and and for AR sake

[15:08] and and everybody sitting there we're liable if we don't follow the

[15:14] rules and I'm not

[15:21] fix I'm cure and in my experience with the city the county and and rules and

[15:28] regulations that have to be

[15:31] followed and it sounds like the cities may not

[15:36] like using these rules which I I agree may may be a little bit harsh but I

[15:43] didn't like the rules I just trying to follow and I would like the Planning

[15:47] Commission to follow them

[15:53] change okay um let's see let's see let me think here

[15:59] so are we out of compliance or no I mean I compliance is

[16:07] important that's a subjective question because that here here's

[16:13] why if if we go strictly by what the RCW says meeting once every nine months you

[16:19] know once a month for nine months at least yes we're out of compliance on

[16:24] that but again as I spoke during the last meeting Department of Commerce is

[16:29] also trying to get that amended because a lot of communities have since moved to

[16:34] hearing examiner situations or never move to a a Planning Commission uh setup

[16:39] in the first place with having everything ran through their city

[16:43] council it's just that they do kind of like a a first and second reading

[16:47] situation uh for their stuff okay so in that regard yes yeah uh the other thing

[16:54] to add to this is the city's not in the business of calling meetings just call

[16:59] meetings um if unless there's something to be addressed there's no point in

[17:06] calling a meeting just to have you guys sit around here and approve minutes from

[17:10] a meeting that never dealt with anything in the first place before the last time

[17:15] you guys actively got together was uh to address the water comp plan and the uh

[17:21] water use efficiency report that made sense it had a bearing on our

[17:26] comprehensive plan which you guys have jurisdiction over um everything else

[17:33] would you know the only other thing left that we were dealing with at the time

[17:38] was various project plans and those all go through the hearing

[17:42] examiner okay um yeah well I don't know if you caught all that Jay but I mean it

[17:47] does sound like right now we're out of compliance until

[17:52] Ecom changes Department of Commerce Department of Commerce so yeah we I mean

[17:57] we are a lot of stuff going on here that we're not really

[18:03] following I wouldn't say a lot but that would be the main thing is

[18:13] meeting.

[18:17] 63.4 that is very clear how the state has set up the

[18:23] commission we are

[18:27] not Ed by the city we work in conjunction with the

[18:33] city uh we shall adop I would

[18:43] disagree recorded meeting with City staff it's very clear in that

[18:52] RCW that we uh resolutions and transactions

[19:01] does it say with the of the city although we should try to work together

[19:05] as much possible I but to be dictated on what we will and

[19:11] won't do I find

[19:27] that it's very

[19:32] clear being an

[19:37] attorney and he day to so what we're really doing here we need to sit down

[19:45] with the council which I will be at the next council meeting

[19:49] also to discuss some of these matters that hey we want to work

[19:54] together we want to get things uh moved forward uh but the Planning Commission

[20:00] will act as a commission not as a Depart of

[20:06] the city

[20:09] May CL City in the RC speaks quite a bit about that

[20:17] we things the mayor suggest Council suggest which we need to get into those

[20:22] RCW there because this is just a of the iceberg we need to also follow the other

[20:29] rules which does tie closely to the city um to help the city do things the things

[20:36] that says that we need to uh help them with the

[20:39] transportation program we've never done that and that is an

[20:44] RCW so I hope that the commission understands let's get back on track and

[20:52] let's do it by the law and not shot from the hi because because Citys we don't

[21:00] have to have a meeting this month well those determinations should be the

[21:06] commission's decision that we need that or not have meeting this

[21:14] so okay well we'll we'll table that one um get some further communication with

[21:20] Council or mayor you know appropriate people okay all

[21:26] right um continued discussion on ways to improve the comp the Planning Commission

[21:33] future in Zilla I think we I think a lot of what

[21:38] we just talked about kind of touches on that and we'll probably play into that

[21:42] um did you have some comment on that Jay yeah that's

[21:48] where I'll have to get back and Michael the mayor of the

[21:54] council because the worst thing

[22:06] has been great on it there there some other things that we

[22:12] we need to do as as

[22:19] and

[22:23] city which I I disagree with but I understand

[22:31] everything I just said follow the code our meetings have to be at 7 o' and not

[22:35] 6

[22:38] o' MP Cod and our states the public can come to a

[22:44] meeting at 7:00 in the evening plan Comm we're holding an illegal meeting

[22:51] right

[22:53] now o' Jay if you could if you could look at

[23:02] 2.484 under meetings in the Zilla Municipal Code it clearly states meeting

[23:08] shall begin at 6: pm. unless otherwise noticed by the

[23:16] city city on your stating that the public can come at 7 o' and

[23:24] the on the webs let's find another issue I agree

[23:29] with you AR except what is the city supposed to do I

[23:34] mean that we have to have a public notice of our meeting it's at 7

[23:43] o' let's find out she's pulling up the um the website

[23:56] website

[24:01] because it may be as simple as changing the

[24:05] website Michael cop of the show the address be what time

[24:13] supposed to be and twice a month right after the City Council

[24:21] meetings the foll it says at least

[24:26] one that's the RCW it says at least one I

[24:31] believe our our actual Municipal Code says two

[24:38] oh which is also one of the things that um our city administrator is going to be

[24:45] looking at when he's doing the boards and commission

[24:49] revamp is making sure that that everything falls into line and does

[24:56] match so I'm I'm not seeing anywhere on here where it says 700

[25:02] p.m. I've got it up right now and Kathy can look over my shoulder to

[25:26] verify and I don't know if you heard you said uh Michael is or will be working to

[25:33] revamp he's currently going through the boards and commissions there's some that

[25:37] we have that have never been activated there's others that need to go away

[25:42] there's he's looking at everything and going step by step looking at the rules

[25:48] and regulations that created them and what are their purpose and so I believe

[25:54] he's actually going to be making a a beginning presentation at the next

[26:00] council meeting so you might want to show up for that

[26:04] Jay um we have staff hasn't even heard what what he's got going

[26:24] on I mean I guess I have a question does the if the city administrator chose to

[26:30] say well I don't want a Planning Commission anymore could he do that by

[26:34] RCW yes yeah did you get that Jay I didn't he resp oh she said by RCW

[26:45] yes well technically the city administrator cannot just xate it it has

[26:51] to come from Council okay no just so Council created the Planning Commission

[26:57] Council can by RCW undo it if if that's needed if they see fit I don't know if

[27:06] that would be of their wish but that's question I'm curious about

[27:10] the procedure did you get that then Jay no okay so um so actually Council by

[27:18] RCW I'm not saying they are but they could choose to dissolve the Planning

[27:24] Commission if they chose to

[27:28] sure I think the council could do a lot of things uh would they I don't no I'm

[27:34] not saying they are I just ask the

[27:42] question that's great RC 35634 very very

[27:50] clear but hey the city has a lot of options and power just like

[27:58] City you know aot yeah no and I it wasn't anything

[28:04] that I heard I just was curious about how that so you know make sure everybody

[28:07] make sure it was on record question ask question

[28:11] answered okay well we're going to table the old business sounds like the old

[28:14] business is going to stay old business for now and new business is the open

[28:20] public meetings act video presentation yeah this is not going to

[28:25] make sense for uh or J but I strongly suggest that you go to the Department of

[28:32] Commerce uh website and under the uh growth management section there is a a

[28:40] list of uh videos that can be watched one of which is the open public meetings

[28:45] act it's about 27 minutes the other one is the appness of fairness Doctrine

[28:50] which is also a video presentation both of those have to be watched and then uh

[28:57] with a certified verification that you've gone through it I can put your

[29:02] certificate in the um on file so that if we are ever

[29:10] challenged that you guys are unaware of the open public meetings act or the

[29:14] appness of fairness doctorine I can pull those out and say no you guys were

[29:19] educated on this uh until that has been done technically we can't address any

[29:25] planning business and until that's been met so everybody has to go through it

[29:31] that you know and it has to be renewed every 3

[29:35] years okay uh Arie did you catch that I did okay Jay did you catch that about

[29:41] the open public meeting act and appearance Affairs doctrine that we've

[29:45] got to all take soon as

[29:50] possible okay got it yeah so you guys can listen to it if you wish I

[29:58] got the

[30:02] here so when we go through this training at the end of it how do we get proof

[30:08] that we did it there's a certificate that

[30:12] um that would be be filled

[30:19] out and the um since it is a YouTube video through their site there's that

[30:25] but if you also wanted to take the short course they also have a zoom link

[30:31] section where you can where this is also available in

[30:39] that well I've got the note on and if anybody needs the reminded where to go

[30:44] to get to those okay sign me up for

[30:53] that is that just an intro yeah basically an intro here City boards and

[31:02] commissions in dealing with the open public meetings act so today in the next

[31:06] about 20 minutes or so

[31:12] back good morning afternoon or evening in this particular situation hi my name

[31:17] is now I'm a hearing for cities and and also City it'll also be a part of the

[31:26] recording [Music]

[31:34] to the next about minutes or so I'm gonna teach to know about the open

[31:39] publics so mandatory State training requirements you can understand how the

[31:44] ACT got the open public meeting video going for 2 minutes that your decision

[31:50] Mak process is open and transparent like the open public meeting act which I'll

[31:54] be calling the opma uh wants to see so um now you know I'm going to be going

[31:59] over a lot of details on how the ACT applies and exceptions to it and

[32:03] exceptions to exceptions and that kind of thing but I don't want you to lose

[32:06] sight of the fact that this actually is very simple requirement and it's very

[32:10] easy to understand if you just keep two principles line the first principle is

[32:16] that uh the open public meetings act requires it if you have a meeting that

[32:20] meeting has to be open and available to the public they have a right to attend

[32:23] and you have to provide notice of the meeting so that public meetings happen

[32:27] so they can go there and watch what's going on that's the first principle the

[32:31] second principle and this is something that that uh this is where people get

[32:35] probably don't realize this is anytime you have a quum of your decision-making

[32:39] Bo your Planning Commission or your city council and they're engaged in any

[32:42] action which is defined by the open public meetings act as including any

[32:46] discussion or deliberation that's qualifies as a meeting so even if you're

[32:50] outside in a parking lot when you're done through public or Planning

[32:53] Commission meeting and you're talking about what happened at that Planning

[32:56] Commission meeting that probably qualifies as a meeting under the open

[32:59] public meetings act and there should have been notice and the public should

[33:01] have been given that opportunity to attend so just keep those two principles

[33:06] in mind and I think you know you will um avoid 90% of the problems that you can

[33:11] encounter with the open public meetings act so let's get down to the details now

[33:16] you know the open public meetings act has been on the book since 1971 that's

[33:20] several decades at this point and so of course in all that time we've had a lot

[33:24] of opportunities develop a substantial number of cases that interpret the act

[33:28] and how it applies to cities and counties now unfortunately for cities

[33:31] and counties most of those cases start off like this and I'm paraphrasing very

[33:35] Loosely but we the courts rule against the city Air county and we feel we have

[33:39] no choice because of the really strong purpose Clause of the opma and uh and

[33:45] let me tell you that purpose Clause is really powerful and I'll read to you

[33:48] directly on the slide as well here so what it says the people of the state do

[33:52] not yield their sovereignty to the agencies which serve them the people in

[33:56] delegating of Authority do not give their public servant the right to decide

[33:59] what is good for the people to know and what is not good for them to know the

[34:03] people insist on remaining informed so that they may retain control over the

[34:06] instrument they have created it's almost like a declaration of independence for

[34:10] open and transparent government our legislature actually copied that from a

[34:14] public initiative which created the public records act which provides that

[34:17] records should be available to the public and so the same principles apply

[34:21] to the opma as well there's another uh Statute in the opma that that also makes

[34:26] it really tough for cities and counties when they're dealing with opma lawsuits

[34:31] and that is a provision that states that the opma is to be liberally construed

[34:36] which means essentially that if there are any gray areas if it's an issue of

[34:40] open and transparency you know the Court's going to find a violation so

[34:44] with that really strong purpose clause and with that liberal construction

[34:47] Clause if there are any gray areas if it's questionable at all you know the

[34:51] Court's going to find that the open public meetings act applies so that

[34:55] means in your particular case the most important thing to do is if there's any

[34:58] doubt in your mind as to whether or not you're holding a meeting treat it as a

[35:02] meeting and then you'll be you know you'll be safe as I'll be discussing in

[35:05] a few minutes it's not that hard to comply with the open public meetings act

[35:09] if in fact you're holding a meeting it's not a big deal so you know if it looks

[35:12] like it's going to be a meeting just treat it like one and and you'll be all

[35:15] right all right let's move on now to this the one statute that that there's a

[35:19] primary requirement of the open public meetings act and and this is you know

[35:23] where everything else essentially Falls from under the act and I'll from it

[35:27] directly all meetings of the governing body of a public agency shall be open

[35:31] and public and all persons shall be permitted to attend any meeting of the

[35:34] governing body of a public agency except is otherwise provided in this chapter

[35:38] all it's saying is if you have a meeting the public has the right to attend now

[35:42] there's just two you know kind of legal issues and questions there you know in

[35:46] in that simple sense one is what's a governing body and two what is a meeting

[35:51] so let's first deal with the governing body the the the statute says it's a

[35:54] multi-member board or Commission that is involved in policym or rule Mak

[36:00] for that particular jurisdiction all right so planning commissions of course

[36:04] the city council or the County Commissioners can't amend their

[36:07] development regulations or their comprehensive plans unless they get the

[36:11] recommendation from the Planning Commission first you are clearly a

[36:13] policy-making body you're a governing body subject to the app and essentially

[36:18] there are a bunch of Attorney General opinions on this but it's any border

[36:21] commission that's created by ordinance or resolution of county or city is going

[36:24] to be a governing B and as always it's in doubt you know the particular

[36:29] committee that you have uh if you have a question about it treat it as if it's

[36:32] subject to the open public meetings app all right now let's get to the good

[36:36] stuff what is that meaning and I've already kind of spilled the beans the

[36:39] beginning of my presentation that's essentially when you have a quum plus

[36:42] action now I'll kind of explain where that rule thumb comes from first of all

[36:47] if you look at the definition of meeting in the opma it's kind of funny it says a

[36:50] meeting is a meeting uh at which action is taken a definition is never very good

[36:55] if it uses the word that's defining but that's what we have under the opma the

[37:00] the the the definition that has more substance here is what's that action

[37:03] that occurs at a at a meaning that's that's of significance and it's it goes

[37:07] through a laundry list of of what constitutes that action but essentially

[37:10] final action which is any final decision like a vote to recommend you know

[37:14] approval of a comp plan Amendment or a vote to approve an ordinance that's

[37:17] clearly going to be an action you know and and you're going to qualify as a

[37:20] meeting if you're doing that with a forum also any discussion or

[37:24] deliberation and that's the tough part is that anytime you're discussing or

[37:28] deliberating anything related to city or county business that's within the

[37:31] jurisdiction of your governing body your committee commissioner board uh that

[37:36] also is subject to the ACT and as I mentioned before that's where

[37:39] communities uh run a file of the ACT a lot of times because they think they're

[37:42] just having a harmless conversation at a party but lo and behold there's a quum

[37:46] of decision makers in that conversation and and they're having themselves a

[37:50] meeting now where does that Quorum requirement come from from the Quorum

[37:53] plus action REM well that actually is isn't mentioned in the statute that

[37:56] comes from the case law and the Attorney General opinions which kind of come to

[38:00] the common sense conclusion that you know Planning Commission really can't

[38:04] accomplish anything or do anything unless it has a forum if you vote with

[38:07] less than a quum to make a recommendation that recommendation

[38:10] really isn't binding it has no legal meaning so you know again if you have a

[38:14] forum and you're you're involved in any discussion deliberation or final action

[38:19] you have yourself a meeting subject to the ACT okay now up until this point

[38:23] I've been talking a about the uh the the action plan Quorum rule some of you may

[38:28] be wondering what's a quorum I haven't actually defined that yet let me do that

[38:31] at this point a quorum essentially is just a majority of your decision-making

[38:35] body uh without a majority of that decision-making body as I mentioned

[38:40] before none of the actions you take have any legal or or binding effect and and

[38:44] usually a quum is a majority of the members your local ordinance or bylaws

[38:48] may have a def different definition but it's going to be around that that

[38:52] majority uh for the entire body and there as I mentioned before you know I'm

[38:56] going to be talking about exceptions and exceptions to Exceptions there is an

[38:59] exception to the quum plus action rule you can actually be holding a meeting

[39:03] without a quum in three limited circumstances one is if the committee is

[39:07] acting on behalf of the governing body all right so you just have two of your

[39:11] five member Planning Commission and they've been tasked to uh uh make some

[39:15] decisions on behalf of the Planning Commission as a whole and direct staff

[39:18] to do a BC or D well in that particular situation even though you don't have a

[39:23] quum they're holding a meeting and that meeting should they provide some notice

[39:27] for the meeting and the public has a right to attend also if the committee is

[39:30] holding a public hearing or it's taking public testimony as well even if it's

[39:34] not a quorum still subject to the open public meetings act now we have the

[39:38] basics here of the Quorum plus action rule let's let's go through some quick

[39:41] examples some R life examples of uh when you're holding a meeting now one of the

[39:45] interesting things about about the open public meetings act to keep in mind is

[39:49] as I mentioned before it was adopted in 1971 this was before anyone had ever

[39:53] heard about emails or texting or blogging or messaging or any of that

[39:57] kind of thing and you know without that really strong purpose clause and and

[40:01] that liberal construction Clause that I talked about before people have a really

[40:04] good argument that well the opma doesn't apply to email exchanges or texting

[40:09] exchanges because it didn't exist back in the legislature adopted it they

[40:12] couldn't have had it in mind but of course now with that strong purpose

[40:15] Clause it's fairly clear that it you know if you're having a discussion

[40:19] that's by email instead of in a in a room in real time it's still going to

[40:23] qualify as a meeting and we actually have a court opinion that says that

[40:26] email exchanges that don't happen all at the same time that happen over several

[40:29] days if you involve a quum of people that can constitute a meeting subject to

[40:33] the open public meetings at and by extension then I think it's fairly safe

[40:37] to say that texting and and blogging where you have say a majority of

[40:41] Planning Commission members that engage in a discussion and the responses to a

[40:45] blog or something all those types of exchanges two-way Communications are

[40:50] going to be subject to the app another you know real life examples of meetings

[40:54] I mentioned before are that like site visits actually if you're out doing a

[40:57] site visit and you have a majority of your Planning Commission members in the

[41:00] car driving out to a site to look at it and you're talking about about uh about

[41:04] the project that's going to be clearly subject to the act out in the parking

[41:08] lot talking about it after the meeting that's subject to the ACT if you have a

[41:11] tradition and this is very common in communities of Y all go out to Denny's

[41:15] or something after your meeting to blow off some steam if you've got a quum and

[41:18] you're laughing about the silly things that Joe said at the meeting that could

[41:21] actually be subject to the open public meetings act so be very careful all

[41:25] right the next topic I'm going to address with the op is is is extremely

[41:29] significant because communities had a lot of problem with this in the last few

[41:32] years and that's email exchanges I want to get in a little more detail about

[41:36] that now first of all to be clear you know the open public meetings Act deals

[41:40] with conversations deliberations that I mentioned before that means a two-way

[41:44] street you know a type of communication if you have a Planning Commission member

[41:48] city council member that just sends out information to everybody without

[41:52] expecting a response or getting a response that's okay it doesn't apply to

[41:56] passive uh transfers of information that don't involve that discussion um another

[42:02] point to keep in mind with emails is that uh you know even if only two

[42:06] Planning Commission members are sending emails back and forth if you have

[42:09] another three that are cced they're considered part of the conversation

[42:12] they're going to count towards that Quorum and uh and you're going to be

[42:16] having yourself a meeting so if you know it's perfectly fine to email your buddy

[42:20] on the Planning Commission and say what do you think about you know what happens

[42:23] tonight that exchange is not going to apply that qualifies a meeting but if

[42:27] you CC a couple other members of the Planning Commission and you hit that

[42:31] Forum numbers then you're going to have some problems now also staff you know

[42:35] staff members are not considered a member of the governing body so when

[42:38] they send you agendas by email and and uh hearing packets and that sort of

[42:43] thing that's perfectly fine you know they're not a member of the governing

[42:46] body they're not subject to the open public meetings act therefore they're

[42:50] not subject to the quum now if they send out an email with that information and

[42:53] then this Sparks a conversation amongst Planning Commission members MERS in an

[42:56] email exchange then you have violated the act so you always have to worry

[43:00] about that two other points now getting a little beyond the open public meetings

[43:03] act but this is really important for you to understand is emails are considered

[43:07] to be public records subject to public disclosure under the public records act

[43:12] all right so if you send out an email to another Planning Commission member and

[43:15] you're discussing Planning Commission business you know an item that may come

[43:18] up on the agenda or actually that has already been discussed even anyone can

[43:22] go to City Hall and say I want a copy of all the emails of Planning Commission

[43:26] Smith sent out to his friends within the last month and by state law the city has

[43:31] for county has to provide those copies to the person who requested it all right

[43:36] and that's why a lot of communities now they have uh uh they give email accounts

[43:40] to their city council members and finding commission members so that all

[43:43] their discussions are done through that city or county account and those emails

[43:47] are easily accessible for public disclosure request that can be very

[43:51] embarrassing for people you think you know a good friend of yours is on the

[43:54] Planning Commission that's a private conversation well if you're talking

[43:57] about city or county business it's not a private conversation it's public and the

[44:01] rule of thumb with this is that uh you know whatever you tell other people in

[44:05] regards to city or county business in an email uh make sure you wouldn't be

[44:09] embarrassed if it was put on the front page of the newspaper because a lot of

[44:12] times that's where it ends up in these record requests and finally another

[44:15] point to be made by emails is that uh they are public records subject to

[44:19] retention under our state retention laws it's actually considered a felony to

[44:24] delete a public record that is required to be preserved all right a lot of

[44:29] public record there there's a they have a record retention schedule that's

[44:32] that's put together by the state AR archivist and a lot of Records you know

[44:36] if you're just talking about scheduling a lunch meeting or something you can

[44:40] delete those immediately but any records that have any substance to them any

[44:43] policy discussions a lot of times those have to be maintained for seven years

[44:48] and again this is why a lot of communities now give email accounts to

[44:51] their Planning Commission members and city council members and County council

[44:55] members so that those records are retained at City Hall and and the people

[44:59] you know sending emails from their private PCS don't have to worry about

[45:02] retaining them now we've identified what a meeting is I think that's probably one

[45:06] of the more important things you need to know about under the opma because once

[45:09] you understand what a meeting is you're going to avoid a lot of those violations

[45:12] that become major embarrassments for for people when it gets in the papers or you

[45:16] know there as a lawsuit or that kind of thing so now let's talk about what you

[45:20] have to do if you do hold a meeting all right you you decide that that meet that

[45:25] conversation out in the parking lot is a meeting so what are you supposed to do

[45:28] Under the act in order to make that legal well two things basically one you

[45:32] have to provide some notice for it and as I'll be discussing most part isn't

[45:35] really a big deal and two the public just has that right to attend so let

[45:39] let's get a little bit more into what it means for the public to have that right

[45:43] to attend all it really means is the public has a right to be in the room

[45:48] where they can listen to what you have to say that's essentially the only right

[45:51] they have under the open public meetings act that the right to attend does not

[45:56] mean that they have a right to testify I mean people are that's a common point of

[46:00] confusion and it's simply not true the opma does not give people a right to

[46:05] interject their comments into your meeting now if on your agenda you say

[46:10] you you put one item that says public comment period you know that's something

[46:13] that you regularly give to people then they have a right to talk because you

[46:16] voluntarily gave them that right to talk but there's no state law that says you

[46:20] have to put a public comment period on your agenda now of course state law in

[46:24] some cases is going to require public hearing for development Improvement

[46:26] applications and and things of that nature and there the public has a right

[46:30] to testify but with you know under the open public meetings act itself there's

[46:34] there's no right to say anything at a meeting uh the right to attend also does

[46:39] not mean the right to disrupt all right if if if people are are making a bunch

[46:43] of noise or throwing things at you cap calls that kind of thing the opma

[46:48] actually has a provision that explains how you can have those people remove

[46:51] from the room if they do that kind of thing under most uh local definitions of

[46:55] disorderly conduct that's a crime one of the elements is disrupting a lawful

[47:00] assembly and of course your Planning Commission meeting or your city council

[47:03] meeting is a lawful assembly and if they disrupt it where you can't conduct

[47:06] business you can call in the police and have them remove just make sure they

[47:10] really are being disruptive because if you have them removed for uh just

[47:14] exercising their free speech rights or something that can be you know the basis

[47:18] for a false imprisonment charge false arrest all that kind of stuff so it's a

[47:22] pretty dicey thing you want to get your City attorney or County prosecutor

[47:25] involved when you get to the point of having people thrown out of the room it

[47:28] does happen but thankfully not too often now a couple don'ts related to the

[47:33] public right to attend you can't condition their attendance on uh signing

[47:37] a signin sheet or providing their address or something like that it's a

[47:41] real common practice in public hearings to have people sign in and and state

[47:45] where they live that kind of thing but just you know to have them sit in the

[47:49] room you can't make them provide that that kind of information also you do

[47:53] have to allow the uh meeting to be reported it if they want to tape record

[47:56] it that's fine all right now if the recording is disruptive like they bring

[48:00] in some really bright television lights and you got your Council memb splitting

[48:03] at each other because the lights are so bright you can stop them from doing that

[48:07] kind of thing but it it truly has to be disruptive to the meeting in order to to

[48:11] get to that point all right so next let's deal with that that notice

[48:15] requirement which I promised is fairly simple and and and it really is you have

[48:18] two types of meetings under the opma regular and special the regular meeting

[48:23] is your regularly occurring meeting the opma simply requires that you adopt

[48:27] something that says when that regularly occurring meeting is going to occur so

[48:32] in most city and county codes they actually say the County Council or the

[48:35] city council will meet the second and fourth Tuesday of every month all right

[48:39] and and there you go you youve applied with the ACT you can also do that in

[48:42] your bylaws or that kind of thing beyond that actually except for a law that was

[48:46] just adopted last year and I'll be talking to you about that shortly

[48:49] there's no other requirement in the opma that requires any notice for those

[48:53] regular meetings there's a statute out outside of the opma that basically

[48:57] provides that cities and counties or at least cities need to come up with their

[49:00] own notice procedures for their meetings and and the way a lot of communities

[49:04] have dealt with that is they simply say we will post the agenda for our meeting

[49:07] at least 24 hours in advance at uh at the library at the post office and at

[49:12] the kiosk rights out at the city council chambers and that that's perfectly a

[49:16] okay and that's the way a lot of communties like to operate like I

[49:19] mentioned there's another law that's added to that and I'll I'll get to that

[49:22] in a minute now special meetings are a little more involved the no for that

[49:26] basically 24 hours in advance you have to give notice to all of your decision

[49:30] makers you're going to have a meeting and you also need to let the media know

[49:33] any media that has given you written request to be apprised of the fact that

[49:37] this is coming up and that notice needs to contain uh essentially the items that

[49:42] you'll be discussing and the only items that you can then discuss at that

[49:46] special meeting are those that are listed in your agenda for your special

[49:50] meeting and that that's that's something very different from a regular meeting

[49:53] where you're fairly free to add items to the the agenda there's some legal debate

[49:56] about whether or not you can adopt ordinance that's not on your agenda but

[50:00] beyond that for a regular meeting you can add just about anything to your

[50:04] agenda but for special meetings you are limited to what that agenda says so all

[50:08] right so I mentioned before that uh there's a lot that was adopted last year

[50:12] that's added to these noticing requirements and and that new law

[50:14] essentially is that you have to post your agenda on your uh website at least

[50:19] 24 hours in advance and the LW does not apply to agencies that don't have

[50:24] websites or that employee fewer than 10 full-time employees all right and the

[50:29] failure to comply with that isn't going to subject you to the uh the opma

[50:33] penalties apply to other types of violations which and those penalties as

[50:36] I'll be discussing are is that the action that was taken his boy the person

[50:39] that Su to get gets their attorney fees if they wi so now another important

[50:44] aspect of the opma that's deals with notify notice procedures is continuing

[50:49] the meaning the opma actually calls it adjourning a meeting but I think most

[50:53] people uh they understand that that the requirements more clearly if you

[50:57] call it continuing meeting if you need to continue the entire meeting to

[51:00] another date I'm not talking about just an agenda item I'm talking about tuning

[51:03] the entire meeting you know say you're going on in o' in the morning

[51:07] everybody's really tired it's like let's let's finish this in a couple days on

[51:10] Thursday night okay then under the OPM continuing that meeting you just have to

[51:14] post the agenda of what you're going to continue to discuss at the door or close

[51:19] to the door or you're meeting need to provide the 24-hour notice to all your

[51:22] decision makers and also to any media that's requested no and well good to go

[51:28] just don't forget to put that agenda on the door all right so now let's get to

[51:33] some of the grand exceptions of the open public meetings act these were called

[51:36] the executive sessions our state legislature it did recognize when it

[51:40] adopted the opma that there are certain circumstances where openness and

[51:43] transparency actually is countered to the public good and and there's a long

[51:48] list of uh you know what types of meetings aren't subject to the opma I'm

[51:52] of course only going to focus on the ones that apply to cities and counties

[51:55] that's that's the most of the audience here uh the first category is Personnel

[51:59] issues if you're talking about uh employee performance a charge against a

[52:04] public official if you're talking about the qualifications of someone you're

[52:07] going to hire board commission uh you know those

[52:11] types of issues can be handled St legislature just felt that it's a little

[52:16] difficult to be frank and honest about what you think about you know someone's

[52:20] performance if you have to do it out in an open meeting and frankly it can be

[52:23] very embarrassing of course to the person they're discussing as well but

[52:27] the final decision has to be done out in the open now the one that's probably

[52:30] going to happen more often for Planning Commission members is what they call the

[52:33] litigation exception or the potential litigation exception that's where if

[52:37] your attorney is present you can talk about lawsuit that's been filed a

[52:42] lawsuit that may be filed or the most common the legal risk of moving forward

[52:47] with whatever action you're thinking about doing if an open discussion of

[52:50] those legal risks would be adverse to the uh to the city or county

[52:55] um this is used quite often I mean one of the things as I mentioned before you

[52:59] really got to be careful with is the attorney has to be there now I think

[53:02] it's proba there hasn't been a case on it but it's probably perfectly fine to

[53:05] have your attorney do it by speaker phone that's the way a lot of

[53:08] communities do it but one way or another the attorney there has to be there

[53:11] because supposedly the entire point of this potential litigation executive

[53:15] session is to talk about legal risks and the only person who can give you the

[53:19] accurate information on that is is your attorney of course then the final uh

[53:24] type of executive is in real estate the purchase and sale of real estate if it

[53:28] could affect price you can do that behind closed doors I mean think about

[53:32] it think about it if if uh if you're thinking of buying a piece of property

[53:36] and you're telling your Public Works director oh you know Joe you're

[53:38] authorized to offer 50,000 for that piece but we're going to give you some

[53:42] uh negotiation flexibility to go up to $100,000 if they're really tough well

[53:47] obviously if you say that kind of statement out in the open you're be

[53:50] paying $100,000 for that piece of property and that's why the legislature

[53:54] said you do that behind closed doors just a couple rules dealing with

[53:58] executive sessions procedural rules before going into exec session you have

[54:02] to announce what the purpose of the executive session is that that

[54:06] announcement has to be specific enough so that someone could identify in that

[54:09] list of exceptions in the opma statutes which one applies and then also very

[54:14] important and it can really be a kind of a pain from a procedural standpoint is

[54:19] that you have to announce when you estimate the executive session will be

[54:22] over because a lot of these executive sessions can last for an hour or even

[54:27] longer and uh you know the public may want to step out as as you're going

[54:31] through this and and deal with other issues and come back to hear what you

[54:34] have to say once you reconvene in an open meeting so uh you know it's real

[54:38] important that that estimate uh at least underestimate the amount of time you're

[54:42] going to do because if you say it's going to take uh an an hour and then

[54:47] you're done in a half hour uh the public still outside thinking that that you're

[54:50] not going to be talking yet and that's uh probably going to be know pretty

[54:54] quick violation of the op PMA if you end up conducting any business while the

[54:57] public is still outside in the parking lot because they were told you weren't

[55:00] going to be doing that anymore secret ballots another opma requirement are not

[55:05] allowed all your voting needs to be done you know publicly so people can see

[55:09] who's voting yes or no so finally let's let's deal with the penalties what's the

[55:13] big deal here with the opma well you know I mean it pro probably the which

[55:18] not listed in the statute the biggest deal is simply the la la loss of P trust

[55:23] I mean the media is a really concerned and really focused on opma issues you

[55:27] know they can't do their job in covering City business if there's any secrecy to

[55:31] it so if a city or county board or commission is found to have violated

[55:35] that usually makes page one of the local newspaper so that that's a big deal you

[55:39] know you want to maintain that public press you want to stay out of the

[55:42] newspapers uh but but secondly um if you violate the act and it's a knowing

[55:46] violation and and that's an important term knowing violation you know the City

[55:50] attorney sitting there telling you don't discuss this issue you know it's a

[55:53] special meeting and it's not listed on the agenda agenda you say we don't care

[55:56] we're going to do it anyway okay that's annoying violation you're going to be

[55:59] subject to a $100 penalty uh probably not covered by your insurance insurance

[56:03] doesn't cover intentional Acts or knowing acts of that nature so that

[56:07] that's that's your out of out of pocket penalty there uh more severe for the

[56:12] city itself is that if someone sues a city or county for an opma violation

[56:16] they get their attorney fees if they win if they lose the city doesn't get

[56:20] reimbursed for its attorney fees but at the person ensuing wins they they get

[56:23] their attorney fees and then finally really significant that any action taken

[56:27] during that illegal meeting is going to be voided all right so if uh you know

[56:32] you you went through two years of of hearings on a huge development project

[56:37] and and you for whatever reason violate the open public meetings act and it gets

[56:41] appealed in supp two years later the court finally determines that the uh uh

[56:45] you know the decision was made the meeting that was properly noticed you're

[56:49] going to have to start all over again all right well I think we're finished

[56:52] here so be sure to let staff know that you just did this training and and when

[56:55] you had that training done keep in mind you have to do this every four years and

[57:00] so we'll see you again in four years to go through it again and thank you for

[57:08] listening and he said use a separate email for City business what is how long

[57:14] is the next one 17

[57:23] minutes so your daughter how much you love her with this beautiful

[57:28] gift it says to my

[57:48] daughter hello in this segment we're going to be talking about the appearance

[57:52] of fairness Doctrine a Doctrine created by the courts and legislature liked it

[57:56] so much they actually adopted a bunch of statutes to implement it as well so

[58:01] let's just jump right into it and uh and first of all let's let's look at the big

[58:05] big picture uh like the open public meetings act the appearance of fairness

[58:09] Doctrine is based on very basic principles that are easy to understand

[58:13] so if if you just keep your eye on the ball on the major Concepts you'll get

[58:17] through it fairly easily but all the all that the appearance of fairness do

[58:21] requires is that if you have a quasi judicial proceeding a proceeding where

[58:24] you're acting like a judge uh that proceeding must be fair it has to appear

[58:29] to be fair that no appearances of bias are allowed you can't look like you're

[58:33] basing your decision on your own personal likes or dislikes as opposed to

[58:37] exactly what's in the code and two no exp part contacts are allowed xart

[58:42] contacts essentially are Communications that happen outside of the hearing

[58:46] process the concept behind xart context is you want to have a Level Playing

[58:50] Field so that everyone at the hearing knows all of the information that that

[58:54] that the decision maker has at his or her disposal it's considered not to be

[58:59] fair if a decision maker decides to say approve a development project because

[59:03] they were told by the applicant the night before uh that they would do ABC

[59:07] and D if the public didn't know what ABC and D was and have no opportunity to say

[59:12] that's not true or we can explain why that doesn't work here that's not a fair

[59:16] proceeding and that's why expart a contacts are also strictly prohibited

[59:20] under the appearance of fairness Doctrine now it's very important to

[59:24] recog ize and this is a you know this is a great point of confusion that happens

[59:28] all the time in these discussions about appearance of fairness it's important to

[59:32] recognize that the appearance of fairness Doctrine only applies to quasi

[59:36] judicial actions it doesn't apply legislative actions and so what's appli

[59:41] to judicial action well essentially in general because it's it applies more to

[59:45] just land's proceedings it also applies to buiness license revocations code

[59:49] enforcement actions it applies anytime you have specific parties or in L's

[59:53] context that essentially means you've got a permit applicant that's the only

[59:56] specific party you need you have a hearing or some other contested action

[1:00:00] you got that you know judicial proceeding and you're determining the

[1:00:03] rights duties or privileges of those specific parties in in a uh land use

[1:00:07] permit application that's you know interpreting code priia determining

[1:00:11] whether or not the project meets those C code criteria okay well let's get into

[1:00:15] some specific examples what constitutes hearing basically any type

[1:00:22] of devel application

[1:00:27] rights want build this is taking place right

[1:00:32] now to build that be

[1:00:39] Jud change the designation from medium family

[1:00:45] residential that too is going to be considered a qu judicial action subject

[1:00:49] to the appearance fairness doctor also if you're dealing with a code

[1:00:52] enforcement action uh lot most planning commissions don't have to deal with that

[1:00:56] specifically but if you happen to be involved in that kind of thing or city

[1:00:59] council that too is subject to the appearance fairness doctor now on the

[1:01:04] other side some concrete examples of what constitutes a legislative action

[1:01:10] anytime you're doing a text amendment to your zoning code even if that text

[1:01:14] Amendment might only really affect you know one person in your community it's

[1:01:19] still going to be considered legislative you don't have to worry about appearance

[1:01:22] there you can have all the EXP part contacts you want you can make all the

[1:01:26] prejudgment uh you know bias comments you want that kind of thing it's

[1:01:30] considered legislative political and uh again you don't have to worry about

[1:01:34] appearance fairness now comprehensive plan amendments also same thing you it's

[1:01:39] not subject to the appearance of fairness Doctrine and what gets to be

[1:01:42] really confusing to people is just some Oddity in state law is that even when

[1:01:47] you're dealing comprehensive planned land use math amendments concerning say

[1:01:51] one partial property that is still considered legisl ative and not subject

[1:01:55] to the appearance of fairness Doctrine even though the reone for that piece of

[1:01:59] property a separate action is considered subject to the appearance of fairness

[1:02:03] Doctrine all right let's deal with uh where you know the appearance of

[1:02:07] fairness Doctrine came from now like I I mentioned before this actually was a

[1:02:10] doctrine that was made up by the courts so the courts essentially out of thin

[1:02:15] air created the uh appearance of fur Doctrine in 1969 based on their

[1:02:20] interpretation and requirements that flow from having a public hearing and

[1:02:24] the state legislature then codified a lot of those requirements in chapter

[1:02:28] 4236 of the revised code of Washington so if you want to have a good sort of

[1:02:33] simple overview of the Paris of fairness doct in the way that it's been codified

[1:02:37] by the state legislature look at those statutes now there have been a lot of

[1:02:41] cases that have interpreted what that means since that came out because the

[1:02:44] casei was very vague about what appears appness means what does it mean to have

[1:02:48] a fair hearing you're really only going to be able to determine that on a caseby

[1:02:52] casee basis so we have a lot of cases that kind of Define the parameters of

[1:02:56] the appearance fairness Doctrine and those cases can essentially be

[1:03:00] categorized into three major categories so one of the categories is personal

[1:03:05] bias essentially whenever you have a personal interest or what appears to be

[1:03:09] a personal interest in the outcome of a decision or recommendation that you have

[1:03:13] to make as a Planning Commission member or city council member uh you know under

[1:03:16] the law that that's considered to be a violation of the appearance of fairness

[1:03:21] doctor and and there's all sorts of different ways that you can be is have

[1:03:25] personal interest the outcome of that case if that affects your uh property in

[1:03:29] some way you know whether it increases the traffic from your home it creates

[1:03:33] odors or noise it adversely affects you if it affects your property values those

[1:03:38] are all situations where a court would consider that to be a personal interest

[1:03:41] in the case where you may be disposed to denying The Proposal you know if it

[1:03:46] adversely affects your property also you know relationships you may have with the

[1:03:50] applicant or with the project opponents you know if the applicant is a cousin of

[1:03:53] yours uh you know it's going to appear that

[1:03:56] you're going to be favorably disposed to approving that application and for that

[1:04:00] reason again a court can through that as violation of the appearance of fairness

[1:04:04] and and let me tell you I mean as I mentioned before there are a lot of

[1:04:06] cases dealing with appearance of fairness and it is surprising at how far

[1:04:09] courts will go to find a violation I think the the ultimate

[1:04:14] example for me has always been a a a bank teller case where bank teller is

[1:04:19] sitting on a Planning Commission someone has an application for a sight specific

[1:04:23] reson in front of him the bank teller doesn't know it but that piece of

[1:04:27] property has a lean from the bank that the teller works for and the and the

[1:04:31] court actually found violation of the appearance of fance Doctrine in that

[1:04:35] case because if that reone or approved the value of the property would go up

[1:04:39] which was good for the bank you know it security value went up and which

[1:04:43] ultimately could be construed as good for the bank teller again the bank

[1:04:46] teller didn't know but just because there was that appearance there that's

[1:04:49] all it took to find in violation so it's very important keep in mind anything

[1:04:54] that could you know remotely be considered to be a personal interest can

[1:04:58] be the basis of an appearance of fairness violation now the other uh

[1:05:02] category it's two of three is prejudgment bias all right that the

[1:05:06] courts wants you to come into a hearing with a completely open mind you're there

[1:05:10] to apply the permit criteria to the facts that are presented to you and you

[1:05:15] should not have made up your mind about whether or not those criteria been met

[1:05:19] until you've heard all of the evidence and there have been cases where we had

[1:05:22] decision makers talking to people before the hearing even started saying I'm

[1:05:26] probably going to be approving this project you're you're you're bringing

[1:05:29] something really good beneficial to our community comment like that is going to

[1:05:33] violate the appearance of fairness Doctrine you you can't be making any of

[1:05:37] those type of prejudgment bias comments until the hearing is over and you're in

[1:05:42] deliberation and then the final uh category is partiality okay if it looks

[1:05:47] like uh you know for because you're a member of the Chamber of Commerce for

[1:05:50] example that's promoting a particular development project if it looks like

[1:05:54] that you may be favorably disposed it's kind of like prejudgment bias uh that's

[1:05:59] going to be grounds for a violation of the appearance of fairness Doctrine as

[1:06:02] well so let's move on now to expart contexts that's the other kind of uh

[1:06:06] important part of the appearance of fairness Doctrine as I mentioned before

[1:06:10] you want to have that Level Playing Field you want it it to be real clear

[1:06:13] that the evidence you're considering in a hearing is the only information you're

[1:06:17] going to consider as to whether or not the permanent criteria have been met so

[1:06:21] what the appearance of fairness Doctrine provides is you know no exp parte

[1:06:25] contacts no contacts outside of the hearing process are allowed if you have

[1:06:29] conversations with a Perman applicant or project opponent or anybody at a project

[1:06:33] about a project and you're getting information about that project that

[1:06:37] could be considered violation of the act the appearance fairness doctorine now a

[1:06:42] way to fix it if you have violated it is um if you disclose at the beginning of

[1:06:47] the hearing you know I talked to Mr Smith Mr Smith told me that uh you know

[1:06:51] there are wetlands at the project site and he sees the property is like flooded

[1:06:55] and wet 6 months out of the Year all right now that's pertinent to your

[1:06:58] analysis of the project it's an xart take contact you need to disclose that

[1:07:02] and you got to give them the the public an opportunity to respond to it they can

[1:07:05] say no it's only what three months out of the year not six months you know the

[1:07:08] public has had an opportunity to review the same information you have you're

[1:07:12] fixed now doing this on purpose just talking to whoever you want and and

[1:07:16] planning on fixing it later is not a very good strategy for one you tend to

[1:07:19] forget who you spoke to and and two you know we're just dealing with the

[1:07:24] appearance of fairness Doctrine right now there's also you know actual bias

[1:07:29] now if you make a comment to somebody in a conversation like yeah I agree there

[1:07:32] are Wetland there and this project should not be approved I hate this

[1:07:35] project if you make you know bias comments like that you're out of the

[1:07:40] picture whether or not you disclose those comments because bias actual bias

[1:07:44] is grounds for refusal whether or not you disclose whatever comments you've

[1:07:47] made now since you have a way of fixing violations you might be tempted at just

[1:07:52] talking to anybody you want and fixing it later like the ACT allows that's not

[1:07:56] a very good idea there are a couple reasons for this one if you just talk to

[1:08:00] whoever comes along you probably going to forget who you spoke to and and there

[1:08:04] going to be some mistakes made and two that remedy disclosure doesn't remedy

[1:08:09] biased comment so if you make comments that sound like you are against a

[1:08:13] proposal before you've heard the evidence uh disclosure doesn't fix it

[1:08:17] much better than just disclosing uh you know the comments you've made is to tell

[1:08:22] people right off the bat I can't talk you about this outside of the hearing

[1:08:25] bring up your comments at the hearing and I'll consider them then or submit a

[1:08:30] Written Letter you know mail it to the staff the staff will get it to myself

[1:08:34] and I'll review it at that point that's the way to deal with xart a contacts do

[1:08:38] not talk to people about a project outside of the hearing process now there

[1:08:43] there are a few exceptions to the uh appearance AFF fairness Doctrine where

[1:08:47] you're going to be allowed to uh uh participate in a in a discussion and

[1:08:52] public hearing even though it otherwise would be considered an appearance of

[1:08:55] fairness violation one of them one of the more common ones is that uh if you

[1:08:59] have so many people who have a violation they all have to recuse themselves this

[1:09:03] is gonna this is going to happen for example in small towns where everybody

[1:09:07] knows everybody else where all seven members of the Planning Commission went

[1:09:10] to high school with the the permit applicant they're all best friends that

[1:09:13] would normally be grounds for uh disqualification for all of them under

[1:09:17] the appearance of terness Doctrine but under the Quorum rule if you have so

[1:09:21] many people who uh have violations that you lose a quorum you're all allowed to

[1:09:26] stay there you all have to disclose what that you know violation is but beyond

[1:09:30] that you're allowed to participate now again they appear this only applies to

[1:09:33] appearance of uh of fairness it doesn't apply to actual biases I mentioned

[1:09:38] before that that's beyond the appearance of fairness docum but when it come just

[1:09:41] an appearance issue if you all disclose then you can all keep going and and

[1:09:46] participate uh another exception is if uh you disclose the fact that there's a

[1:09:52] potential violation and nobody objects at that time when they're informed of

[1:09:56] that potential violation all right if somebody fails to object when they uh

[1:10:00] know about a violation they can't raise that issue later on that's the reason

[1:10:05] why uh most communities at the beginning of a quide Judicial proceeding will

[1:10:09] start off by disclosing all the potential violations any of the members

[1:10:13] could have so you know each person takes a turn on the Planning Commission saying

[1:10:16] I live 600 ft from the property and and this may increase the traffic for my

[1:10:21] home a little bit this kind of thing y all disclose that then the chair asked

[1:10:24] the audience does anyone have any objection to any of the people on the

[1:10:28] Planning Commission participating in this hearing and if there are no

[1:10:31] objections from people out in the audience you essentially immunized

[1:10:34] yourself from any appearance of fairness challenge so that that's why you know

[1:10:38] that disclosure disclosing the most remote types of interest is so important

[1:10:43] at the beginning of a hearing now if you're running for office while you're

[1:10:46] running for office you can U make opinions you can have your opinions

[1:10:50] that's a First Amendment issue actually uh about upcoming development projects

[1:10:55] that's not going to be subject to the appearance of fairness doctor uh also if

[1:10:58] you get campaign contributions from an applicant or something as you're running

[1:11:02] for an office that kind of thing also is not going to be subject to the par

[1:11:06] fairness Doctrine this is where the courts and the legislatur has recognized

[1:11:09] that the First Amendment rights that attached to running for office are

[1:11:13] basically more important than the appearance of fairness Doctrine this

[1:11:16] this it's a touchy area though because you can again run into problems where

[1:11:21] you have actual bias if you're running for office and you're making comments

[1:11:24] like I will never ever let this huge department store you know locate in our

[1:11:28] city limits uh you know that's more than an appearance AFF fairness issue that's

[1:11:33] a due process a bias issue and you're still probably going to have to recuse

[1:11:37] yourself anyway so uh you know you're going to have to decide sometimes when

[1:11:41] you're running a for office you know if you're going to make some really

[1:11:43] unequivocal comments about your opposition development project you're

[1:11:47] going to have to decide whether it's more important to be able to make those

[1:11:49] comments or to participate as a decision maker once you get into office final

[1:11:55] exception is prior participation in an advisory body so say that you were on

[1:12:00] the uh uh Planning Commission and you've made a recommendation on development

[1:12:03] project and then later on you are uh elected to the city council and you're

[1:12:08] considering that finding commission recommendation under the statutes you're

[1:12:12] allowed to participate uh again it's a little dicey if you've made some

[1:12:16] unequivocal comments for against the the project down below but but in general

[1:12:20] you are allowed to participate as a city council member so finally let's deal

[1:12:23] with the consequences we've talked a lot about the law here so what's the big

[1:12:27] deal what happens if you violate the ACT well the big part is your action will be

[1:12:31] void and uh you have to do it all over again kind of like with the open public

[1:12:36] meetings act you know if you spend uh two years of processing a permit and

[1:12:41] holding hearings and and then you're going through multiple appeals the final

[1:12:44] Court decision by the court of appeals or Supreme Court is that you violated

[1:12:48] the appearance of par doc we got to go back and do it all over again and uh and

[1:12:52] and another consequence of that then is there could be some damages involved now

[1:12:56] one of the older cases dealing with this the only one that's directly dealt with

[1:12:59] it provided that you there are no damages monetary damages for violing the

[1:13:03] appearance of fair in a stalker but that was a while ago that was before some

[1:13:07] statutes were adopted that provide that there are damages for violating

[1:13:10] procedural requirements appearance of fairness Doctrine could be you know

[1:13:14] considered kind of a procedure that you violated and you know it is possible

[1:13:18] eler could have you know a claim against you if if their project is delayed for

[1:13:22] two years because somebody engaged next part A contacts that were properly

[1:13:26] disclosed so so be careful you know and uh it's not that difficult to comply

[1:13:31] with the appearance fairness Doctrine just uh think of yourself as a judge you

[1:13:35] know consider the fact that would people think that I'm an impartial decision

[1:13:38] maker if uh if they knew that I'd been given this information before the

[1:13:41] hearing or if they'd known that the applicant is my cousin a lot of times

[1:13:44] the answer would be yes they they would have problems about that and uh you

[1:13:48] should recuse yourself so in conclusion very simple appearance fairness doct

[1:13:53] simply requires no bias no expart contacts if you have to refuse yourself

[1:13:58] step out of the room you're done that's all you need to

[1:14:22] know all

[1:14:26] righty everybody still

[1:14:29] here all right fun time still those

[1:14:37] out yeah so I do think it's important to go on the record while the second video

[1:14:41] was going at about 7:05 Michael Graham came in and there was an exchange about

[1:14:46] something that occurred tonight so I am curious about what that was yeah he was

[1:14:51] reading my notes regarding uh action taken he thought he would make it here

[1:14:56] before getting through the old business but he didn't he wanted to know where we

[1:15:00] were and I pointed to the appearance of fairness doctorine after that he saw

[1:15:06] okay training he bounced yeah I don't yeah I don't think that the reaction

[1:15:12] that was on his face wasn't about the fairness of no it I'm pretty sure the

[1:15:17] reaction was to the motion regarding the the uh private email well that's fine

[1:15:22] but that's why I want that on record though because I think that's the

[1:15:24] frustration with the Planning Commission right now is we seem to just kind of

[1:15:28] will an ilot so when I see that come in but we don't stop and talk about it I

[1:15:33] mean that's that's a problem well you just got through a video that said it's

[1:15:37] not supposed to happen so and but it happened so that's what I'm saying

[1:15:42] though how does the city just get to write the rules as we go we should have

[1:15:46] stopped and you guys should have we should have discussed it so it could be

[1:15:49] on the record because if I wouldn't have just asked about that that would have

[1:15:53] never came up why would it it'd be in the minutes would it

[1:15:59] yes okay well did you get that

[1:16:06] Jay he didn't ask anything he read he read my my remarks well we it'll be in

[1:16:12] the minutes though so we'll make sure you request a copy of the minutes you'll

[1:16:16] see him next

[1:16:19] meeting just so I'm clear on this Michael had a conversation outside of

[1:16:26] our meeting an exchange it was an exchange it went call a conversation dur

[1:16:30] the meeting and it was also recorded we couldn't hear that with the video going

[1:16:34] so nothing really happened I pointed to my my that's not about nothing that

[1:16:39] happen it should be of record if I wouldn't have asked after the video what

[1:16:44] took place you wouldn't have shared that that's our

[1:16:47] frustration there's there's nothing to to share he's reading he's reading my

[1:16:51] notes well let's just get the minutes rules isely

[1:16:58] violation let's get the minutes so it's up

[1:17:04] record any visitor

[1:17:08] comments no visitors any staff reports no no staff reports looks like we

[1:17:17] adjourn the meeting at

[1:17:22] 718 right thank you very much

[1:17:28] forend I just want to make sure the

[1:17:33] roll have a great

[1:17:39] evening hey Ary you still there yep I am all right uh you stop by or go online

[1:17:47] and you can download the um certificate yourself or you can come to the office

[1:17:52] and get one oh I think I'll come to the office okay

[1:17:57] remind me of being in school uh Russ are you signing the minutes or are

[1:18:03] we waiting till Jay gets

[1:18:15] back yeah not a problem okay webly see you tomorrow sure soon okay all righty

[1:18:24] have a good one you too bye

[1:18:35] bye just give this to right now okay thank

[1:18:43] you next

[1:18:47] [Music]

[1:18:51] time

[1:19:21] warm

Planning Commission 2-6-24

Transcript