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Whether a hospital district must go out for bids to open an account with a supplier of office supplies for the ongoing purchase of those supplies.

 

 

It is our position that the bid statute applicable to hospital districts (RCW 70.44.140), while not a model of clarity, does not require competitive bidding for purchases of supplies. The State Auditor's Office appears to concur in this conclusion. See, e.g., "State Auditor's Office, Audit Update," presented at the June 28, 2010 AWPHD Membership Meeting by Debbie Pennick, SAO Audit Manager. At page 2 of that document, it states that "... the law does not clearly require bidding for equipment or supplies." Accordingly, the district is not required to go out for bids to set up an account with a company for the ongoing purchase of office supplies. Although, of course, the district may employ some sort of process to ensure that the supplier it chooses for the account best meets the district's needs.

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What limitations are there on the use of public service announcements during election season? 

 

 

Introductory Note: Although the analysis to follow is quite detailed, keep in mind, with respect to Public Hospital Districts ("PHDs"), that the new restrictions described below regarding public service announcements only apply to candidates for elective office. Most commonly for a PHD, in that PHDs only have one position - commissioner - that is an elective office, the restrictions will apply to a current commissioner who is running for reelection or election to another elected public office. Perhaps less commonly, the restrictions will also apply to non-elected PHD municipal officers who are running for elective public office, such as a PHD superintendent who is running as a candidate for an elective public office for a city, county, or state government.

Section 703, Chapter 204, Laws of 2010, specifically addresses use of public service announcements ("PSAs") during election season. The law, which was enacted through 2SHB 2016 and will be codified in chapter 42.17 RCW, became effective March 25, 2010. See also the Final Bill Report for this legislation.The state Public Disclosure Commission ("PDC") has issued an official PDC Interpretation (PDC Interpretation No. 10-01) that provides guidance on Section 703 ("2010 PSA Law"). The 2010 PSA Law states:

No state-elected official or municipal officer may speak or appear in a public service announcement that is broadcast, shown, or distributed in any form whatsoever during the period beginning January 1st and continuing through the general election if that official or officer is a candidate. If the official or officer does not control the broadcast, showing, or distribution of a public service announcement in which he or she speaks or appears, then the official or officer shall contractually limit the use of the public service announcement to be consistent with this section prior to participating in the public service announcement. This section does not apply to public service announcements that are part of the regular duties of the office that only mention or visually display the office or office seal or logo and do not mention or visually display the name of the official or officer in the announcement.

For local governments, including public hospital districts, the manner in which the PDC is interpreting the terms in the 2010 PSA Law is significant. The following guidance is provided in PDC Interpretation No. 10-01."Elected official" is defined under RCW 42.17.020 as "any person elected at a general or special election to any public office, and any person appointed to fill a vacancy in any such office.""Candidate" is defined under RCW 42.17.020 as "any individual who seeks nomination for election or election to public office," and RCW 42.17.020 provides several factors demonstrating when a person becomes a candidate.Regarding "municipal officer," the PDC notes that the term is not defined by chapter 42.17 RCW, although the Legislature has otherwise defined it in RCW 42.23.020(2) as:

.. all elected and appointed officers of a municipality, together with all deputies and assistants of such an officer, and all persons exercising or undertaking to exercise any of the powers or functions of a municipal officer.

For the purposes of the 2010 PSA Law, the PDC indicates that it will interpret the term "municipal officer" to include those persons described in RCW 42.23.020(2).

Explanatory Note: Based upon our consultations with the PDC, one way to think about who constitutes a "municipal officer" is to consider a hierarchical framework in which the top level includes elected officials, then those officers they appoint, and then the deputies and assistants of such officers and all persons exercising powers and functions of a municipal officer. In the public hospital district context for example, elected commissioners and the superintendents and interim superintendents the commissioners appoint are "municipal officers." However, whether a deputy or assistant of a municipal officer or an employee is considered a municipal officer in their own right will depend upon the powers and functions of those deputies, assistants, and employees. We recommend that you contact the PDC if you are unsure whether a particular candidate is a municipal officer under the 2010 PSA Law (see below for contact information).

"Municipality" is defined in RCW 42.23.020(1) as "all counties, cities, towns, districts, and other municipal corporations and quasi municipal corporations organized under the laws of the state of Washington."A "public service announcement" ("PSA") is defined in WAC 390-05-525(1) both by what it is and what it is not. To be considered a PSA, the communication must be (note that all of these bullet points apply):

  • Designed to benefit or promote the community's health, safety or welfare, or nonprofit community events;Sponsored by an organization with a history of routinely providing the community such outreach public service messages in the service area of the organization;Of primary interest to the general public and not targeted to reach only voters or voters in a specific jurisdiction;Subject to the policies for public service announcements of the entity broadcasting, transmitting, mailing, erecting, distributing or otherwise publishing the communication, including policies regarding length, timing and manner of distribution; and
  • One for which the arrangements to include a reference or depiction of the candidate or candidates in the communication were made at least six months before the candidate became a candidate.

For example, a PSA would include communications about nonprofit community events, as well as about outreach or awareness activities such as breast cancer screening, heart disease, organ donation, childhood safety, fund drives for charitable programs, and similar matters.Regarding what a PSA is not, under WAC 390-05-525(1) a PSA cannot be a communication that is:

  • Selling a product or service; and/or
  • Coordinated with or controlled or paid for by a candidate's authorized committee or political committee.

In Interpretation No. 10-01, the PDC recognizes that the definition for PSA in WAC 390-05-525 was adopted to implement a different law - RCW 42.17.020(21)(f) (the "electioneering communications" PSA exemption) - and that the 2010 PSA Law presents additional considerations, particularly regarding public agencies employing municipal officers and state-elected officials. In light of such considerations, the PDC indicates that it will use the definition of PSA in WAC 390-05-525 in implementing the 2010 PSA Law, but will do so in the framework of several specific interpretations.The PDC provides six fairly detailed bullet points of explanation regarding how to interpret WAC 390-05-525 in light of the 2010 PSA Law. We recommend that you review these interpretations in full. Rather than restating the bullet points here, the following are key points to carefully consider, including:

  • Regarding WAC 390-05-525(1)(d) as it relates to those public agencies that are charged by law to implement election laws and communicate with voters as part of their normal and regular duties, if such an agency produces or funds a message to, for example, encourage voters to vote, although municipal officers and state-elected officials who are candidates cannot speak or appear or otherwise be named in such PSAs for the period beginning January 1 through the general election, the offices of such officers and officials can produce or arrange for such PSAs if it is part of the regular activities of that office.Regarding WAC 390-05-525(1)(f), in that PSAs are typically scripted and time and/or space-limited ads, if the entity producing and/or distributing the message is a public entity, the PSA must be part of the normal and regular activities of the agency, conform to the agency's internal rules/policies regarding communications, and not assist a campaign.Regarding WAC 390-05-525(1)(g)'s provision that a PSA is one for which the arrangements to include a reference or depiction of the candidate or candidates in the communication were made at least six months before the candidate became a candidate, this six-month advance time period for arrangements for PSAs applies only to the electioneering communications exemption in RCW 42.17.020(21)(f), because the time period from January 1 through the general election applies specifically to the 2010 PSA Law.
  • Explanatory Note: In consulting with the PDC, it is our understanding that the six month reference in the bullet point above is in relation to the electioneering communications restrictions in RCW 4217.020(21)(f). However, in accordance with the 2010 PSA Law, it is unlawful for a municipal officer to use PSAs beginning January 1 and continuing through the general election if that official or officer is a candidate. Therefore, for the purposes of municipal officers and PSAs, the six month reference related to RCW 42.17.020(21)(f) is irrelevant because the 2010 PSA Law is what governs municipal officers who are candidates and their use of PSAs.

    Regarding the January 1 date, if you are a municipal officer and you become a candidate, you are required to not engage in PSAs beginning January 1 and continuing through the general election. So, for example, if you had not intended to be a candidate in January and PSA posters were made with your picture on them and distributed in February, and then you announced your candidacy in June, you would be required to make good faith efforts to cease and remove all PSAs that violate the 2010 PSA Law once you announced your candidacy. (See example below.)

  • For municipal officers who are candidates and whose agencies produce PSAs as part of the normal and regular conduct of their agencies, the non-exclusive list of PSA examples in WAC 390-05-525(2) that benefit the public welfare under WAC 390-05-525(1)(a) will be read by the PDC to include additional examples, such as public safety warnings by public safety agencies and other similar public health, safety, and welfare notices if they are part of the normal and regular conduct of the agency However, note that a municipal officer who is a candidate cannot speak or appear in such PSAs beginning January 1 through the general election, although their offices can produce or arrange for such messages if it is part of the normal and regular conduct of that office.Also regarding the non-exclusive list of examples of PSAs in WAC 390-05-525(2), the PDC notes that scripted PSAs oftentimes (1) describe limited facts about an event, community outreach effort service or cause, and (2) invite listeners to educate themselves and/or assist in activities such as those listed as examples.Based upon the approach taken in WAC 390-05-525, the PDC provides several examples of what a PSA would not include, such as:
    • Certain news items or editorials, including those that are:
      • Of primary interest to the general public; In a news medium controlled by a person whose business is that news medium; and
      • Not controlled by the candidate or committee.
    • Certain hosted radio or television talk shows:
      • Where the participating public official is not paid by the show's sponsor; and
      • Which are of primary interest to the general public in a news medium controlled by a person whose business is that news medium and is not controlled by the candidate or committee.
      Certain open news conferences and press conferences where an "open press conference" (under PDC Interpretation 92-03):
      • Is "a meeting of an elected official with one or more working representatives of the print or broadcast media; to whom an invitation has been generally extended to press representatives in the area or who ordinarily cover the activities of the office." "[E]nvisions that there will be an opportunity for press representatives to question the official about the ballot measure at issue."
      • "If the press conference is held electronically rather than in person, i.e. by telephone or television, participants must be afforded an opportunity to hear others' questions and the official's answers."
    • News releases and newsletters, with the PDC noting that "[i]f a newsletter contained a separate ad run as a PSA, that ad would be subject to the criteria in WAC 390-05-525 and the 2010 PSA Law" Live speeches, with the PDC noting that "[i]f part of a speech or testimony is recorded and a portion is later used in a PSA, that recording is no longer a live speech or testimony." Testimony; Rallies; Responses to a specific inquiry; Communications made or produced as part of litigation, including but not limited to:
      • Exhibits; Oral or written argument; Class action notices; or
      • News releases or news conferences to announce litigation filings or case outcomes, "and the like";
    • Public agency websites, with the PDC noting that "[i]f a webpage contained a separate PSA, that ad would be subject to the criteria in WAC 390-05-525 and the 2010 PSA Law."

    And;

    • Personal communications not using public facilities, including personal social media such as:
      • Personal e-mails or letters; or
      • An individual's Facebook page that is not published or sponsored by a public agency.

The PDC concludes Interpretation No. 10-01 with three important points:

  • All activities of public agencies, including PSAs funded or produced by public agencies, are still otherwise subject to the restrictions regarding the use of public funds and public facilities to assist a campaign, including, for local governments, RCW 42.17.128 (regarding use of public funds for political purposes) and RCW 42.17.130 (regarding use of public office or agency facilities in campaigns). Under the 2010 PSA Law, because it is unlawful for municipal officers who are candidates to speak or appear in PSAs between January 1 and the general election, it is also not "normal and regular" for local municipal officer candidates to engage in those activities during that time period under WAC 390-05-273 or RCW 42.17.130.
  • Regarding RCW 42.17.130, municipal officers should also be aware that the 2010 PSA Law is an additional consideration to take into account when engaging in activities during an election, beyond those identified in PDC Interpretation 04-02 (Guidelines for Local Government Agencies in Election Campaigns).

As an example of how the 2010 PSA Law has been interpreted by the PDC, a complaint was filed against an incumbent county prosecuting attorney alleging that he violated the 2010 PSA Law by being featured in a PSA that identified him as an elected official while a candidate seeking reelection. The prosecuting attorney's office had contracted with a private company through which signs were distributed to businesses in the county featuring his name and image. The signs were related to a "Passing a bad check is a crime" announcement. The county prosecutor's office authorized use of the prosecuting attorney's name and image as part of a check enforcement program prior to the effective date of the 2010 PSA Law.After the 2010 PSA Law was signed into law, the county prosecutor's office contacted the private company and informed them of the new restrictions prohibiting municipal officers who are candidates for public office from appearing or being identified in a PSA, and requested that the company take steps to remove the signs that might conflict with the new restrictions from county businesses. The private company designed a replacement sign that did not identify the subject prosecuting attorney. The company also informed the county prosecutor's office that it would make the sign available to participating merchants with instructions about the restrictions of the 2010 PSA Law as it relates to candidates.The PDC determined that the prosecuting attorney and the staff at the county prosecutor's office took reasonable steps to comply with the new restrictions regarding PSAs, and that no formal investigation was warranted. The PDC declined to conduct a formal investigation of the matter.As a final note, although the 2010 PSA Law does not apply to private citizen candidates, there are restrictions on electioneering communications that apply to such candidates.

The PDC is available to provide assistance regarding the 2010 PSA Law and any other matters under the PDC's jurisdiction. In our experience, the PDC is a valuable resource in working with public officials to comply with campaign requirements. The PDC has requested that questions regarding the 2010 PSA Law be directed to Lori Anderson, PDC Communications & Training Officer, at (360) 664-2737.

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What is the process for two hospital districts to consolidate?

 

 

Interestingly, the statute on consolidation of two public hospital districts merely refers to the procedures that apply to cities, which are located in chapter 35.10 RCW. The hospital district statute on consolidation, RCW 70.44.190, provides:

Two or more contiguous hospital districts, whether the territory therein lies in one or more counties, may consolidate by following the procedure outlined in chapter 35.10 RCW with reference to consolidation of cities and towns.

Briefly, a hospital district consolidation is initiated by either a joint resolution enacted by the board of commissioners of each of the hospital districts involved or by a petition of citizens of each hospital district with signatures equal to at least 10 percent of the votes cast at the last district general election. In either case, there will need to be a special election of citizens held in each of the districts. Prior to the election, the county must hold at least one public hearing of citizens on the proposed consolidation. Also, the consolidation is subject to review by the statutory boundary review board in the county prior to the election. The citizens in each district must then approve the consolidation by majority vote, with the voters in each district approving the consolidation as individual units. If the consolidation is successful, then another election is held to elect the new officers for the district, and the consolidation is not effective until these officers are elected and assume office. The newly elected officers assume office immediately upon their qualification.We prepared a fairly extensive memo on this topic:

 

PUBLIC HOSPITAL DISTRICT CONSOLIDATION

District to District Consolidation

What is Consolidation?

Consolidation is the merger or combining of two or more districts into a new district. In order to be eligible to consolidate, the districts must have borders that are contiguous to each other. However, the districts may consolidate even if they are located in different counties and regardless of the size of the districts involved.Procedures for Consolidation of Public Hospital DistrictsAll public hospital districts utilize the same consolidation process. This process is the same process as that utilized for the consolidation of cities and towns and is set forth in chapter 35.10 RCW. Two or more hospital districts may consolidate as long as the districts are contiguous.Initiation of Consolidation ProceduresConsolidation of public hospital districts may be initiated by one of the two following methods:

  1. By petition of the voters to the board of commissioners of each contiguous hospital district with signatures equal to not less than 10 percent of the votes cast at the last district general election held in such hospital district, requesting consolidation of such contiguous districts. The board of commissioners receiving such petition is to immediately forward a copy to the auditor of the county or counties in which that district is located. The auditor determines the sufficiency of the petition and, if found sufficient, calls a special election on the issue. (RCW 35.10.420)
  2. By joint resolution of the board of commissioners of the contiguous districts, adopted by a majority vote of each board. (RCW 35.10.410)

Contents of the PetitionThe petition may provide that a general obligation indebtedness of one or more of the districts be assumed by the newly consolidated district. The petition must comply with the requirements for form set out in RCW 35A.01.040. A legal description of the districts is not required in the petition. (RCW 35.10.420)Designation of Election Date - Notice to County Legislative AuthorityWhen the consolidation process is begun by a joint resolution, the resolution is to provide for the submission of the issue to the voters. The issue is to be submitted to the voters at the next general municipal election, if one is to be held more than 90 days but not more than 180 days after the passage of the joint resolution, or otherwise at the next special election date that occurs 90 or more days after the passage of the joint resolution The special election dates are specified in RCW 29A.04.330.If the consolidation is begun by petition, the call for an election on the issue is to be made by the county auditor, after the auditor has determined the sufficiency of the petition. As is true with the joint resolution process, the consolidation issue is to be submitted at the next general election, if one is held more than 90 days but not more than 180 days after the filing of the last petition or otherwise at the next special election that occurs 90 or more days after the date when the last petition was filed.Review Board RequirementsThe statutory boundary review boards which are established under chapter 36.93 RCW have jurisdiction to review public hospital district consolidations under their normal review procedures. County Hearing and Review of Proposed ConsolidationThe county legislative authority - or authorities, acting jointly - is/are required to conduct one or more public meetings on the proposed consolidation, with at least one public meeting held in each county in which one or more of the districts proposed for consolidation is located. The county legislative authority sets the date, time, and place of each public meeting, and names a person or persons to chair the meeting. (RCW 35.10.450)Public meetings of the county shall be held at least 20 but not more than 45 days before the date of the consolidation election.At each public meeting, each hospital district proposed to be consolidated shall present testimony and written materials on the following:

  1. The rate or rates of property taxes imposed by the district, and the purposes of these levies;
  2. The indebtedness of the district, including general indebtedness.

Ballot TitlesIf a proposal for assumption of indebtedness is to be submitted to the voters of a district in which the indebtedness did not originate, the proposal shall be separately stated and the ballots shall contain, as a separate proposition to be voted on, the words, "For assumption of indebtedness to be paid by the levy of annual property taxes in excess of regular property taxes," and "Against assumption of indebtedness to be paid by the levy of annual property taxes in excess of regular property taxes," or some such equivalent wording. (RCW 35.10.460)Canvass of VotesThe county canvassing board in each county involved shall canvass the returns in each election. The votes cast in each of such districts shall be canvassed separately, and the statement shall show the whole number of votes cast, the number of votes cast in each district for consolidation, and the number of votes cast in each district against such consolidation. If the majority of the votes cast in each of the districts is in favor of consolidation, then the consolidation is authorized. This means that it is necessary for the voters in each district to approve the consolidation as individual units. If any one district votes against the consolidation, then it is defeated.If the consolidation is successful, then another election is to be held in order to elect the new officers for the district. The consolidation is not effective until these officers are elected and assume office. The newly elected officers assume office immediately upon their qualification.It is also possible as noted for a proposition to assume one district's indebtedness to be submitted to the residents of the other district. There are special requirements regarding approval percentages in regard to the issue of assumption of indebtedness set out in RCW 35.10.470.Name of DistrictThe joint resolution or the petitions may prescribe the name of the proposed consolidated district or may provide that a ballot proposition to determine the name of the proposed consolidated district be submitted to the voters of the districts proposed to be consolidated.However, if the name of the proposed consolidated district is not prescribed by the joint resolution or petition, or a proposition on the name is not submitted to the voters of the districts to be consolidated, then the newly consolidated district will be known as the district of ... (listing the names of the districts that were consolidated in alphabetical order). The board of commissioners of the newly consolidated district may present one or two alternative names to the voters at the next municipal general election held after the effective date of the consolidation. If only one name is presented, then this name will become the name of the new district if approved by a simple majority vote of the voters who vote on the issue at the election. If two names are submitted, the name receiving the majority of the votes cast will become the name of the district. (RCW 35.10.490) Disposition of Property and AssetsUpon a consolidation of two or more districts, the title to all property assets owned by the former districts vests in the new consolidated district.Assets and Liabilities of Component Districts - Taxation to Pay ClaimsConsolidation does not affect or impair the validity of claims existing in favor of or against any such former district so consolidated or any pending proceeding, such as a court case. The consolidated district is to collect such claims in favor of such former districts and apply the proceeds to the payment of any just claims against them, and is to levy and collect, when necessary, taxes against the taxable property within any such former district sufficient to pay all just claims against it. (RCW 35.10.310)Receipt of State FundsUpon the consolidation of two or more districts, the consolidated municipality is to receive all state funds which the component districts would have been entitled to receive during the year when such consolidation became effective. (RCW 35.10.317)Unassumed Indebtedness

Unless a former district's indebtedness is approved by the voters in the other district in which such indebtedness did not originate, such indebtedness continues to be the obligation of the district in which it originated. The board of commissioners of the consolidated district is to continue to levy the necessary taxes within the former district that incurred this indebtedness to pay off the indebtedness. (RCW 35.10.331)

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