The Attorney General's Office (AGO) has produced a background memo on the proposal to tape local government executive sessions (HB 3292). From the AGO:

The Problem
The Open Public Meetings Act (OPMA) allows elected officials to hold closed-door discussions regarding specific issues such as pending litigation, personnel matters and real estate transactions. However, the act requires that all votes be held in a public session.

According to the State Auditor, from Jan. 1, 2004 to Nov. 13, 2007, there were 460 instances where executive sessions were an issue. These issues have varied from illegal executive sessions to improper notice.

• The Seattle Times reported that Port of Seattle commissioners argued over whether some of them, in executive session, had promised their outgoing Port E! xecutive a severance package upon retirement. According to the Times, there was a document, but they disagreed on exactly what it meant. Without a record, there is no way to know.

• A Dec. 31, 2007 audit of Lewis County reported the commissioners violated the OPMA on several occasions by holding executive sessions without indicating what exemption from the OPMA they were using to justify the executive session and by holding additional executive sessions in meetings where no minutes are kept at all. “…Without recorded minutes of these meetings, the topic or duration of these executive sessions cannot be determined.”

• A Dec. 21, 2007 audit of the Yelm Fire District found the district held several executive sessions without the adequate legal basis for holding an executive session.

Background
According to the Open Public Meetings Act (OPMA), before convening in executive session, the presiding officer of a governing body shall publicly announce the purpose for excluding the public from the meeting place, and the time when the executive session will be concluded. The executive session may be extended to a stated later time by announcement of the presiding officer. RCW 42.30.110(2). There is no requirement to record the proceedings conducted in executive session.

• Oregon law allows reporters to sit in on executive sessions. “Representatives of the news media shall be allowed to attend executive sessions other than those held under subsection (2)(d) of this section relating to labor negotiations or executive session held pursuant to ORS 332.061 (2) but the governing body may require that specified information be undisclosed.” (ORS 192.660(4))

Requiring Audio Recording of Executive Sessions Under the OPMA (HB3292)
The Attorney General will join State Auditor Brian Sonntag in introducing legislation that:

• Requires an audio recording of complete executive sessions to be retained for a period of two years.

• Makes the recording a public record, not subject to disclosure except by court order or by permission of the governing body.

• Provides that an individual alleging an improper executive session bears the burden of proof in providing credible evidence of a violation to the court at which time the court may review the audio recording to determine whether there was an improper executive session.

• Allows the court to disclose only those portions of the audio recording where it finds a violation of the executive session provisions.

• Allows any documents relied upon in an improper executive session to be subject to disclosure ! if not otherwise exempt.

Myths & Fact
Myth: This bill insults the integrity of local government officials by assuming every executive session is improper.

Fact: As has been pointed out, hundreds of city, county and other local elected officials hold hundreds of meetings every year. At most of these meetings, officials comply with the OPMA.  This bill helps improve accountability by ensuring the rest of the meetings comply.

Myths: Recording executive sessions and storing the recordings is cumbersome and expensive with no benefit to local governments.

Fact: HB 3292 assists new council people in getting up to speed on important issues of the council.

Fact: Taping of executive sessions could help governments recall actions taken should disputes arise such as in the Seattle Port District situation.

Fact: The Sony ICDB500 Digital Voice Recorder is available at Office Max for $39.99 and includes 256MB of built-in memory—enough to record 150 hours of audio—or roughly three hours of executive session per week for an entire year.  It is approximately 1” by 4” big, making it easy to lock in a secure place for safekeeping.

Fact: Local government are only required to keep the recordings for two years.

Myth:  This bill will chill debate due to the threat the tape could be disclosed.

Fact: HB 3292 ensures that business done behind closed doors is protected unless there is serious question about actions taken.  The person seeking review of the audio recording bears the burden of proving a violation may have occurred and providing credible evidence to support the claim.

Fact: Conversations that are currently exempt from disclosure and advice given by attorneys during executive session will still be protected. The recording is no different than a memo.

Fact: HB 3292 permits the court to disclose only those portions of the recording where it finds a violation of the executive session provisions. The rest of the recording will remain exempt.

Fact: Public officials conducting public business are accountable to the public even when discussin! g topics that are exempt from public disclosure. If the discussions are truly exempt, they will remain exempt.

Myths: The tape could be leaked or unauthorized personnel could access the recordings.

Fact: The tape recorder and/or storage devices can easily be locked up – just like other important confidential documents—to prevent unauthorized access.

Fact: Local government officials and staff participating in executive sessions can just as easily leak information now as they could if there was a recording.

Sponsors
• House Majority Leader - Lynn Kessler, D-Hoquiam
• House Minority Leader - Richard DeBolt, R-Chehalis
• Rep. Mark Miloscia, D-Federal Way
• Rep. Dave Upthegrove, D-Des Moines
• Rep. Troy Kelley, D-University Place
• Rep. Christopher Hurst, D-Greenwater

Local Government Support
• The Pierce County Council and the Seattle City Council have both approved ordinances supporting HB3292.

• The University Place City Council, Fircrest City Council, Sumner City Council, Port of Tacoma, Port of Seattle, Tacoma School District, and King County Public Hospital District #1 have expressed plans to do the same.

Editorial Support
• The Seattle Times (2/7/08)
• The Columbian (2/10/08)
• Tri-City Herald (2/11/08)
• Yakima Herald-Republic (2/8/08)
• Everett Herald (2/7/08)
• The News Tribune (2/7/08)
• The Olympian (2/7/08)

The proposal is currently before the House.