Governor’s Proclamation on OPMA & PRA for Public Hospital Districts

Governor Inslee issued Proclamation 20-28 on Tuesday, March 24th, suspending portions of the Open Public Meetings Act (OPMA) and the Public Records Act (PRA).  Below is information about what the Proclamation means for public hospital districts and other agencies subject to the OPMA and PRA.

With respect to the OPMA, the Governor’s Proclamation can be summarized as follows:

  1. Public agencies, including public hospital districts, are temporarily prohibited from holding in-person meetings with the public present.
  2. Meetings can be held with all members of the governing body and staff participating remotely as long as there is an option for the public to attend the proceedings through, at a minimum, telephonic access.
    • Other technology may also be used, but a call-in number/phone access is required.
    • If oral public comment is allowed, the technology used must enable all persons attending the meeting remotely to hear each other, not just hear members of the governing body.
    • Protocols and features can be used to control who is speaking when and to prevent multiple attendees from speaking at the same time.
  1. At any meeting conducted under these procedures, action can be taken only on “necessary and routine matters” or “matters necessary to respond to the COVID-19 outbreak and the current public health emergency.”
    • The bottom line is that agencies can conduct business they need to get done, but should hold off on taking action on non-urgent matters or matters not typically considered under normal policies, practices and procedures.
    • For public hospital districts, we interpret this requirement to allow the board to take action on items such as time-sensitive budgetary and financial issues, quality and credentialing issues, and other matters that must be addressed in a timely manner and are performed in the regular course of procedure.
    • Of course, any matter necessary to respond to the COVID-19 emergency may also be included on meeting agendas.
    • Major new policy initiatives or programs, activity that can be put off to another day, and/or matters that require some new procedure the public is not familiar with should be deferred unless they are matters that would be deemed necessary to address COVID-19.
    • The AGO issued explanatory guidance on these issues that should also be consulted.
  1. PHDs will need to carefully evaluate items that may be placed on meeting agendas or proposed for resolution for compliance with the “necessary and routine” requirement.
  2. Various references in the OPMA that imply that a physical location is required for meetings are suspended, i.e., RCW 42.30.030 (all persons shall be allowed to attend), RCW 42.30.040 (attendance at a meeting cannot be conditioned), RCW 42.30.050 (disruptive persons can be removed from the room – the proclamation deletes the word “room” but still allows disruptive people to be removed from the meeting), and RCW 42.30.070 (the statute is revised to allow the governing body to provide for a meeting other than at a “site” if the meeting will occur at other than the regular meeting site).
  3. Some of the notice provisions in the OPMA are suspended, i.e., RCW 42.30.075 (which requires any change in the regular meeting schedule to be published in advance of the change); RCW 42.30.080(2)(c)  (which requires notice of a special meeting to be posted at the entrance to the building in which the regular meeting is located); and RCW 42.30.090 (which requires notice or adjourned or continued meetings to be posted on the door of the building in which the regular meeting is held).
    • The AGO recommends that at a minimum, an agency’s online agenda should specify how the public may remotely attend the meeting, and the agency should also provide this information on its website, via email, or by other relevant means.
  1. These provisions only apply through April 23, 2020.  This is because the Governor only has the authority under his emergency powers to suspend the provisions of state law for 30 days, after which the legislature must approve any extension.  If the legislature does not approve an extension, the Proclamation will expire and the OPMA will be back in full force and effect.

With respect to the PRA, the Governor has waived and suspended certain provisions as follows:

  1. No in-person copying of public records or in-person submittal of a records request is allowed.  The Proclamation suspends the requirement of RCW 42.56.080(2) to make agency facilities available to copy records and to accept PRA requests in person during normal office hours.
  2. No in-person inspection of public records is allowed.  The proclamation suspends the requirement of RCW 42.56.090 that in-person inspection of records be allowed during regular business hours.
  3. The requirement in RCW 42.56.100 to provide “full” public access to public records is suspended.
  4. The requirement in RCW 42.56.520(1) to respond to public records requests within five business days is suspended.
  5. All other requirements of the PRA remain in effect, i.e., public agencies must still honor public records requests received by means other than in person and must still provide copies, etc. when requested to do so.
  6. These provisions also only apply through April 23, 2020.

OMW’s Healthcare and Municipal teams are here to help public hospital districts navigate these issues.  Please contact Maddie Haller at (206) 447-2232 or at mhaller@omwlaw.com with questions.