[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