State auditors: Whatcom council violated public meetings law in 2010 with email exchanges

Written by jared | The Bellingham Herald | December 29, 2011

From Paben

Whatcom County Council violated state open public meetings law in 2010 when it held email ‘meetings’ that should have been open to the public because a quorum was present and members were discussing business, state auditors said.

The state Auditor’s Office issued a management letter to Whatcom County after conducting an audit of various areas of the county for 2010. A management letter is essentially a yellow light warning of something wrong, but it’s not as serious as an audit ‘finding,’ a red light. If issues brought up in management letters are ignored, they can become findings in the future.

This audit contained no findings.

From state auditors:

“We identified three occasions in which County Council Members sent email to the full Council. On two of the occasions, a Council member responded back to full Council. Email exchanged among Council members discussing business with a quorum present meets the definition of ‘action’ of the governing body under the Open Public Meetings Act, (RCW 42.30) which requires such meetings to be open to the public.”

The auditors went on to note that council staff is currently drafting a policy on council member email use. “We recommend the County adopt a policy and ensure compliance with the Open Public Meetings Act,” auditors wrote.

I filed a public-disclosure request with the Auditor’s Office for copies of the emails. In one situation, on Feb. 19, 2010, council member Sam Crawford email various parties, including council members, with his thoughts on a request from Superior Court for more funding. Council member Barbara Brenner responded later that with with her opinion.

In another instance, council member Ken Mann on Sept. 28, 2010, wrote an email to council members referencing and copying from a blog post he did on The Herald’s website. He was discussing a requests for copies of the council members’ calendars. The next day, Brenner responded with her opinions on the topic.

Here are the emails:

Superior Court funding discussion

Public disclosure request discussion

Rural zoning email

I’m not planning on writing an article on this for tomorrow, but I am planning to turn one in tomorrow afternoon. I wasn’t able to reach council clerk Dana Brown-Davis because she is out of the office right now. Mark Burnfield, the county’s public records officer, said he hadn’t heard anything about the issue or management letter.

I’m going to try to get a hold of the council members to get their thoughts for the article. I’m not sure if they even know about the state Auditor’s letter yet.

I learned of this because the Auditor’s Office released the results of the 2010 audit on Tuesday.

I just found this interest legal opinion on email exchanges and the Open Public Meetings Act. The last page of the memo provides advice to local governments on how to avoid violations of the law when sending out emails. For example, the safest thing to do is to not send them to a majority of the council members, the memo notes. It’s also probably not a problem if emails sent to all council members discuss an issue that really isn’t likely at all the come before the body in an open meeting for any kind of deliberation, the memo states.

What do you think?