Open Government

WPC's Center for Government Reform's mission is to partner with stakeholders and citizens to work toward a government focused on its core functions while improving its transparency, accountability, performance, and effectiveness for taxpayers.

Open Government Blog

Judge rules for OFM in dispute with Eyman

September 11, 2009 in Blog

Thurston County Superior Court Judge Richard Hicks has rejected Tim Eyman's legal challenge of I-1033's fiscal impact statement prepared by the Office of Financial Management (OFM). This means OFM's I-1033 analysis will be included without alteration in the voters' pamphlet.

According to OFM, passage of Initiative 1033 would result in approximately $5.9 billion in state property tax rebates and $2.8 billion in local property tax rebates going to citizens by 2015. At the same time state and local revenue available for spending increases would grow each year by an amount based on population growth plus inflation. 

These tables (click link) show the year-by-year revenue growth, I-1033 fiscal growth factor and forecasted property tax rebates pro!
jected by OFM.

Yesterday the Washington Research Council released its analysis of I-1033. Here is the Council's conclusion:

Passage of Initiative 1033 would reduce revenues available to state, city and county budgets in
the coming years. Revenues in excess of the limit would be returned to property taxpayers as relief in the following year, beginning in 2012. Also, the pattern of property tax relief may well be lumpy.

The state’s recent experience with I-601 may be instructive. In its early years, the initiative successfully kept a lid on state spending. Over time, lawmakers repeatedly amended the initiative. Some analysts argue that the ability to amend voter-approved initiatives gives lawmakers the flexibility necessary to adapt to changing fiscal conditions. Others argue that the statut!
ory initiatives here, unlike the constitutional measures in ot!
her states, make it too easy for legislators to circumvent the will of the voters. Typically, legislators have been reluctant to overturn or make substantial amendments in initiatives in the years immediately after passage.

The effects of I-1033 on cities and counties will likely vary considerably. Some communities have substantial population growth, while others have plateaued or even fallen into decline. Economic conditions, property valuation, taxing authorities, and demand for public services are far from uniform across local governments in our state.

Initiative backers say there’s a simple remedy to a too-tight limit: Ask the voters to loosen the restraints. Opponents, on the other hand, object to ballot-box budgeting, which can frustrate long-range planning, delay decision making, and add another layer of election costs to tight budgets. That philosophical debate has been ongoing since well before the 1993 vote to adopt I-601 and is unlikely !
to end this year with I-1033.

However I-1033 plays out over time, the immediate effect will be to hold revenue growth below current projections for the state’s major governments during the anticipated economic recovery, while providing uneven property tax relief beginning in three years.

The Washington Policy Center will be releasing its review of I-1033 in the coming weeks.

OFM responds to Eyman's I-1033 fiscal note challenge

September 10, 2009 in Blog

Earlier this week I mentioned Tim Eyman's lawsuit against the Office of Financial Management (OFM) to change
the details in the fiscal note the agency created for the voters'
pamphlet for Initiative 1033.

Here is a copy of OFM's response to Eyman's lawsuit.

Of note from OFM's brief:

Virtually every argument that Plaintiffs advance to take issue with OFM's stated assumptions rests on rules of statutory construction, contrasts Plaintiffs' interpretation of the measure with OFM's interpretation, appeals to the exercise of "logic", or acknowledges ambiguity in the measure. Endeavoring to resolve ambiguities in a proposed law surely entails the exercise of judgment and discretion. And even where Plaintiffs alternatively claim that the scope of I-1033 is clear, the language of the measure belies the meaning that Plaintiffs !
would give to I-1033.

For example, one of Plaintiffs' principal claims is that there is no basis in I-1033 for OFM's assumption that "general fund revenue" for purposes of I-1033 is confined to "taxes, fees and other governmental charges." According to Plaintiffs, "taxes, fees and other governmental charges" are merely illustrative of "general fund revenue" under I-1033. Inexplicably, in making this claim, Plaintiffs fail to note the measure actually defines "general fund revenue" and defines it in a manner entirely consistent with OFM's fiscal impact statement assumptions as to the scope of "general fund revenue."

One of Eyman's complaints is that the "Fiscal Impact Statement erroneously assumes that the initiative's
reference to 'taxes fees or other governmental charges' limits the
types of revenue included within the revenue limit applicable to the

Here is the declaration of Julie Murray, Legislative Director for OFM, describing the process OFM used to build the fiscal impact statement in question.

Here is the declaration of Shane Hamlin, Assistant Director of Elections for the Secretary of State, disputing Eyman's claim that there is still time to change the voters' pamphlet if the Judge orders OFM to create a new fiscal impact statement.

The hearing to resolve this dispute is scheduled for 9 a.m. on Friday.

Eyman sues OFM over I-1033 fiscal note

September 8, 2009 in Blog

As reported by The Olympian, Tim Eyman is suing the Office of Financial Management (OFM) to change the details in the fiscal note the agency created for the voters' pamphlet for Initiative 1033. I-1033 would create a new revenue
limit for the state and several local governments with the goal of
annually reducing property taxes. As required by law, OFM conducted the fiscal impact statement on I-1033.

According to Eyman's lawsuit:

  • The Fiscal Impact Statement erroneously assumes that the initiative's reference to "taxes fees or other governmental charges" limits the types of revenue included within the revenue limit applicable to the state;
  • The Fiscal Impact Statement erroneously assumes that government charges for publications and documents are not included in the revenue limit;
  • The Fiscal Impact Statement is misleading in excluding "grant and loan repayments", "indirect and prior cost recoveries," and "unclaimed property" because it gives the impression that revenues to the applicable funds will not be treated as revenues to the applicable funds;
  • The Fiscal Impact Statement is erroneous in excluding "federal and state direct and indirect grants" from the revenue limits applicable to counties and cities;
  • The Fiscal Impact Statement is erroneous and misleading in excluding from the revenues of counties and cities "charges for contracted services performed by counties and cities" and "charges for enterprise activities that are not governmental in nature;"
  • The Fiscal Impact Statement is erroneous and misleading in excluding "inter-fund and inter-departmental charges;" and
  • The Fiscal Impact Statement's assertion that this measure is applicable to towns is erroneous.

In an August 21 letter, OFM Director Victor Moore noted:

OFM's role in interpreting the statute extends only to developing assumptions to estimate any projected increase or decrease in revenues, costs, expenditures, or indebtedness that the state or local governments will experience if the ballot measure were approved by state voters. Only a court of law can definitively interpret a statute, and therefore, all relevant factors used for our estimates, including areas of statutory interpretation, are clearly identified as assumptions within the fiscal impact statement.

In addition, prior to submitting the statement to the Secretary of State's Office, OFM provided the assumptions to the Attorney General's Office (AGO) for its review in accordance with the statute referenced above. The assumptions were returned to OFM unchanged. The AGO did not suggest or require any changes and found no flaws in th!
e assumptions as presented. For these reasons, we believe our fiscal impact statement assumptions do not require revision.

A hearing has been scheduled for 9 a.m. Friday.

Unemployment claims still rising nationally

September 3, 2009 in Blog

In a topsy-turvy economy like this, it seems for every glimmer of hope there's an ugly reminder of our current status. While the summer unemployment rate stabilized (at least for the time being) at 9.4% nationally and 9.1% for our state, the Labor Department today released data showing that the number of people filing for unemployment benefits climbed over the past week. Analysts expected about 564,000 initial unemployment claims but 570,000 ended up doing so.

The good news for Washington state is that there were 1,100 fewer initial claims this week than the last one. 

Some interesting data also shows that productivity rose sharply during the second quarter, while labor costs fell. This is good because higher productivity and lower costs will help lead towards profit!
, which in turn leads to economic growth as businesses ramp back up.

Of course, let's hope this happens otherwise there won't be any way to pay for some of the federal government's audacious plans. As this article from the Federal Reserve Bank of Cleveland points out, the federal budget deficit as a percentage of GDP is already at a 60+ year high, around 11.2%, and both the OMB and CBO expect it to remain at around 4% for the next decade.

What does all this data mean? We're certainly not anywhere to even being close to out of the woods.

Senator challenges press on public records exemption

September 1, 2009 in Blog

Yesterday the state Sunshine Committee voted 8-1 to recommend the Legislature repeal its exemption to the public records act for legislative records. State legislators are currently the only officials in the state with this exemption. The lone no vote was Sen. Adam Kline, Chair of the Senate Judiciary Committee.

Reporting on the vote Crosscut notes:

In this state, the 2007 Legislature passed a law that shields
journalists from having to reveal their sources in court. Kline was
prime sponsor of that shield-law Senate bill. Representative Lynn
Kessler, another Sunshine Committee member, was prime sponsor of the
identical House version, which became law.

Kline says he asked journalists on the Sunshine Committee “why [a
source's identity] should be confidential to them and not to us.” He
says he didn't get an answer. “ There is no difference,” he says. “They admit it by their silence.”

Kline readily concedes that some communications from constituents are “venal,” but he thinks the public interest in protecting potential whistle blowers outweighs the public interest in exposing people who, say, try to buy votes. Kline reasons that some people who have sensitive information won't come forward if they know their identities can be made public. Is that speculation? Of course, Kline says. But he suggests it is also speculative that the lack of a shield law before 2007 kept sources from communicating with journalists. “I feel that those people [who provide sensitive information to legislators] need to be shielded just as they are when they go to a news reporter,” he says.

The press, however, did answer the Senator's question at the Sunshine Committee hearing yesterday. Here is the exchange between Sen. Kline an!
d Rowland Thompson, Executive Director of Allied Daily Newspapers of Washington:

Sunshine Committee votes to repeal legislative records exemption

August 31, 2009 in Blog

At long last the state Sunshine Committee voted to repeal the Legislature's exemption from the public records act. Committee Chair Tom Carr originally proposed the resolution on March 18. By a 8 to 1 vote:

Committee recommends that the legislature eliminate the Legislative
exemption, which excludes from public scrutiny personal records of the
legislature, including e-mails, correspondence, except when designated
as a public record by a “official action of the Senate or House of
Representatives.” Every other legislative body in the state of
Washington is fully subject to the public records act. There is no
principled reason why the state legislature should be exempt. 

Implementing this recommendation would require amendment of RCW 42.56.010(2) as follows: "Public record" includes any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.

This change addresses the Legislature's
double standard when it comes to compliance with the public records
law. Now it is up to the Legislature to act on the Sunshine Committee's recommendation next session.

Voting yes: Thomas Carr, Senator Pam Roach, Representative Lynn Kessler, Rowland Thompson, Ken Bunting, Patience Rogge, Ramsey Ramerman, and Frank Garred.

Voting no: Senator Adam Kline

Additional Information
Legislative records exemption vote postponed again

UPDATED: Did TABOR destroy Colorado?

August 28, 2009 in Blog

This November Washingtonians will vote on Initiative 1033. The measure is sponsored by Tim Eyman and would create a new revenue limit for the state and several local governments with the goal of annually reducing property taxes.

Due to the similarities between I-1033 and Colorado’s Taxpayer Bill of Rights (TABOR), opponents of I-1033 have sought to compare the impact of TABOR in Colorado to what voters can expect to happen in Washington if I-1033 is enacted.

Without debating the details of I-1033, it is worth considering the claims about TABOR's impact in Colorado.

According to I-1033 opponents:

In Colorado, core public structures deteriorated under TABOR. From 1992 to 2005, the state experienced significant decay in health care, K-12!
and higher education, transportation infrastructure, and other basic public services.

The opponents use a bevy of statistics to make their case.

As Mark Twain once noted, however, "There are three kinds of lies: lies, damned lies, and statistics."

Illustrating this observation, the Tax Foundation has come to a different conclusion about TABOR's effect in Colorado. In a report refuting some of the statistics cited, the Tax Foundation noted in 2005:

The state of Colorado is under assault. Opponents of Colorado’s
Taxpayer Bill of Rights (TABOR) are waging a well coordinated but
misleading attack on Colorado’s reputation. This attack takes the form
of a number of rankings and statistics that purport to show that the
Taxpayer Bill of Rights has decimated Colorado. These rankings and
statistics are based on the assumption that if Colorado ranks poorly on
things like the adequacy of prenatal care and education spending, then
Colorado is failing to adequately care for and educate its citizens,
and that the Taxpayer Bill of Rights must be to blame. A closer look at
the attacks shows that they fail to prove that the amount a state
spends on health care and education determines quality, and they also
fail to tell the whole truth about the rankings and statistics of the
state of Colorado [please see study and links below for details] . . .

Contrary to the assertions of its opponents, the Taxpayer Bill of Rights has not decimated Colorado. In other measures of fiscal standing, not mentioned by the opponents of the Taxpayer Bill of Rights, Colorado compares very favorably to other states. Colorado’s per capita tax burden is the tenth lowest in the nation, ranks as the 8th friendliest business-tax climate (the highest ranking of any state with a sales tax and a corporate and personal income tax), and ranks as the state with the 2nd highest level of economic freedom. It is simply inaccurate to say that Colorado is a sub-standard state based on selectively cited statistics and national rankings, and even more inaccurate to blame the Taxpayer Bill of Rights for any perceived inadequacies.

I-1033 opponents also note the voters in Colorado !
suspended TABOR in 2005, purportedly proving their dislike for the results provided. While this temporary suspension until 2010 did occur, TABOR remains popular in Colorado. In fact, an effort to permanently repeal the TABOR state tax refunds (Amendment 59) failed in 2008 with 55 percent voting against. This means the people of Colorado have decided that TABOR will be back to its full force and effect in 2010.

Does this mean that I-1033 is good or bad policy? That's a debate that will go on till election day but it shouldn't hinge on misrepresenting Colorado's TABOR.

Additional Information
TABOR: What Was Said vs. What Really Happened
Exposing TABOR Data Games
TABOR Benefits !
Colorado's Citizens: A Response to Misleading Video

Open Government Task Force Members

August 27, 2009 in Blog

State Auditor Brian Sonntag announced yesterday he is creating an Open Government Task Force with Attorney General Rob
McKenna. The purpose of the new Task Force
is to study and make recommendations on the creation of an
administrative board to rule on complaints of violations regarding the
state's open government laws. The Task Force meetings are scheduled for
October 5, 2009 and November 2, 2009 from 9 a.m. to 1 p.m. at the
Attorney General's Office in Olympia. Below is a list of the Task Force members:

  • Rob McKenna, Attorney General
  • Brian Sonntag, State Auditor

Staff Contact:

  • Tim Ford, Open Government Ombudsman for Attorney General's Office

Task Force Members:

  • Paula Adams, Public Information and Records Officer for King County Department of Development and Environmental Services
  • Jim Doherty, Legal Consultant, Municipal Research and Services Center
  • Judy Endejan, Attorney, Graham and Dunn
  • Ruth Gordon, County Clerk for Jefferson County
  • Jerry Handfield, State Archivist for Secretary of State
  • John Hendrickson, Kenmore City Council Councilmember
  • Mary Hunt, Douglas County Commissioner District 3
  • Chris Hurst, State Representative, 31st District (member of State Government Committee)
  • Graham Johnson, (Executive Director of the Public Disclosure Commission 1974-1993)
  • Lynn Kessler, State Representative, 24th District – Majority Leader
  • Joel Kretz, State Representative, 7th District
  • Mark Lindquist, Pierce County Prosecuting Attorney
  • Louis Mitchell, Bremerton School Board of Directors
  • Bob Morton, Senator, 7th District
  • Shirley Nixon, Citizen Activist
  • Toby Nixon, President Washington Coalition for Open Government
  • Bob Partlow, Foster Parent Support and Recruitment for Department of Social and Health Services
  • Althea Paulson, Kitsap Regional Library Board Member
  • Kevin Phelps, Deputy County Executive & Executive Director of Operations & Infrastructure for Pierce County
  • Craig Ritchie, Attorney for City of Sequim
  • Rowland Thompson, Executive Director Allied Daily Newspapers of Washington

Here are additional details about the Open Government Task Force:

We [McKenna and Sonntag] created this Task Force to address growing concerns among governments and the public. State agencies and local governments face a logjam of citizen complaints, costly litigation over the PRA and the OPMA, and uncertainty regarding potential liability that may require payment of attorneys' fees, costs, and daily penalties. Citizens who are denied access to public records and public meetings have no choice other than to go to court, and lawsuits may take years to resolve and are costly. Going to court to enforce legal rights to access public records and public meetings is simply not an option for many citizens.

An efficient and inexpensive solution is needed to resolve complaints and provide greater access to public records and public meetings while reducing costs to governmental agencies and the public. Many !
states provide an independent administrative review process to resolve complaints without litigation. These states use administrative boards to offer services including mediation, dispute resolution, non-binding legal interpretations, investigation of potential violations, issuing final appealable rulings, offerings of legislative reform, and training public officials about their responsibilities under the law.

The Task Force may consider the pros and cons of the open government enforcement efforts in Connecticut, New Jersey, and New York.

PDC holds work session on enforcing open government laws

August 26, 2009 in Blog

An all-star panel participated in a Public Disclosure Commission (PDC) work session today discussing how the public records and open meetings acts should be enforced. Joining the PDC Commissioners on the panel were:

  • State Auditor Brian Sonntag
  • Representative Sam Hunt
  • Representative Marko Liias (sponsor of bill discussed)
  • Tim Ford, Open Government Ombudsman for the Attorney General’s Office 
  • Toby Nixon, President Washington Coalition for Open Government
  • Dan Heid, Washington Municipal Attorney’s Association
  • Ramsey Ramerman, Attorney and state Sunshine Committee Member
  • Graham Johnson, former Executive Director of the PDC

The focus of the work session was HB 1784 introduced during the 2009 Legislative Session by Representatives Liias, Chase, Hasegawa, Appleton and Ormsby. The bill received a hearing but was not voted on. Here is a summary of HB 1784 from the House Bill report:

In 1971 the Legislature enacted the Open Public Meetings Act (OPMA). The OPMA requires that all meetings of the governing body of a public agency be open to and public, and all persons shall be allowed to attend.

Initiative 276, passed by the voters in 1972, established the disclosure of campaign finances, lobbyist activities, financial affairs of elective officers and candidates, and access to public records. That initiative also created the Public Disclosu!
re Commission (PDC), a five member, bipartisan citizen commission, to enforce the provisions of the campaign finance disclosure law.

Twenty years later, in 1992, the Fair Campaign Practices Act was enacted following passage of Initiative 134. Initiative 134 imposed campaign contribution limits on elections for statewide and legislative office, further regulated independent expenditures, restricted the use of public funds for political purposes, and required public officials to report gifts received in excess of $50.

Unlike the campaign finance disclosure laws, enforcement of the OPMA and the Public Records Act (PRA) must be pursued through the judicial system.

The powers of the PDC are expanded to include the enforcement of the OPMA and the PRA. The PDC is authorized to investigate, review and adjudicate complaints alleging violations of the OPMA and the PRA. The PDC is also authorized to issue interpretative opinions of the OPMA and the PRA!
. In addition, the PDC can provide confidential consultation r!
egarding a person's or agency's duties under the OPMA and the PRA.

PDC staff highlighted similar open government enforcement efforts in Connecticut, New Jersey, and New York.

Panelists were provided a work sheet asking their opinions on “Possible Elements of Open Government Oversight Agency” including:

  • Single agency to oversee open government
  • Independent of other agencies
  • Single agency head
  • Multimember board
  • Oversee open records
  • Oversee open meetings
  • Jurisdiction over state agencies
  • Jurisdiction over local agencies
  • Conduct investigations
  • Conduct hearings
  • Exclusive jurisdiction over disputes
  • Dual jurisdiction over disputes, with superior courts
  • Use Administrative Law Judges
  • Have mediation program
  • Have ombudsman program
  • Adopt rules
  • Issue formal written opinions (oral or written)
  • Provide materials
  • Provide training
  • Operate toll-free number
  • Track PRA/OPMA legislation
  • Submit annual report to Legislature
  • Funding source
  • Effective date of agency

The discussion centered around common themes. From the citizen advocates: It is too hard for requestors to take on governmental entities in an open government dispute. From the government lawyers: There need to be more costs/restrictions on citizens to avoid abuse of the laws and burdening governmental entities.

There did seem to be some agreement that an independent oversight entity is needed though the devil is in the details for the panelists.

State Auditor Sonntag announced that he is creating an Open Government Task Force with Attorney General Rob McKenna to continue this discussion. The purpose of the new Task Force is to study and make recommendations on the creation of an administrative board to rule on complaints of violations regarding the state's open government laws. The Task Force meetings are scheduled for October 5, 2009 and November 2, 2009 from 9 a.m. to 1 p.m. at the Attorney General's Office in Olympia.

Whether it is the PDC or an independent Open Government Ombudsman, citizens and government would benefit from an independent entity charged with enforcing the state's open government laws while also providing training and assistance. We discussed the need for this in our latest Policy Guide (page 8 of pdf).

Legislative records exemption on the clock

August 26, 2009 in Blog

The state Sunshine Committee may finally take action at its meeting
next Monday on the issue of legislative records and the public records
act. Here is the draft agenda. Additional information here: