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Recently, we won a corporate trophy for a running event. Our IT person wants to take a picture of the participants with the trophy and post it on our Facebook page. Questions: Should the staff in the picture sign a consent form approving this post? Are we required to get their consent to post a picture? Can we post pictures of the public attending our Health Fair?

 

 

Chapter 63.60 RCW addresses use of photographs in such situations generally. See specifically RCW 63.60.010 and RCW 63.60.070. The latter provision lists several exemptions that allow use of photographs. Note that there is an exception for a use in connection with matters of public interest, but "public interest" is not defined. There are penalties for improper infringement of the personality rights that are involved with photos (see, e.g., RCW 63.60.050) so it is good you are asking this question and researching the matter before posting any photos.

It appears that a significant concern of chapter 63.60 RCW is to protect against unauthorized use of photos for commercial gain, which, based on the particular circumstances, may or may not be at issue. It may be that the use in question falls under the "public interest" exception. However, in that there is some room for interpretation on such issues, we recommend that you consult with the hospital district’s legal counsel regarding the applicability of the above provisions, as well as perhaps other provisions in chapter 63.60 RCW, to the particular photographs at issue and the intended use of such photographs. If in doubt, we recommend that the district obtain consent from the individuals at issue pursuant to chapter 63.60 RCW.


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1. Are there claim procedures that apply to hospital districts?
2. Within what time period must a person bring a claim against a hospital district?
 

 

 

1. Yes. See chapter 4.96 RCW. A hospital district is a "local government entity" covered by these provisions. RCW 4.96.010(2) states:

Unless the context clearly requires otherwise, for the purposes of this chapter, "local governmental entity" means a county, city, town, special district, municipal corporation as defined in RCW 39.50.010, quasi-municipal corporation, or public hospital.

2. The claim must be brought within the applicable statute of limitations. RCW 4.96.020(2) states in part:

.. All claims for damages against a local governmental entity, or against any local governmental entity’s officers, employees, or volunteers, acting in such capacity, shall be presented to the agent within the applicable period of limitations within which an action must be commenced. ...

Note also that RCW 4.96.020 includes other specific requirements applicable to local government entities (including public hospital districts). These requirements include: an obligation under RCW 4.96.020(2) to appoint an agent for receiving any claim for damages under chapter 4.96 RCW; a requirement under RCW 4.96.020(3), for all claims presented after July 26, 2009, that such claims for damages be presented on a particular tort claim form that requires specific types of information; and a requirement under RCW 4.96.020(4) that the claim be presented to the district at least 60 days before a complaint is filed.

   

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Typically in the early part of the year I put out a blanket notice to the local news media that outlines the Board’s meeting calendar for the year that is developed about a year in advance. Because the Board’s meetings are always the last Thursday of the month, they typically conflict with the Thanksgiving and Christmas holidays, and we move the meetings up to accommodate everybody’s holiday schedule. Because the meetings deviate from their regularly scheduled meetings, I have always considered it a special meeting and have always treated it as such. Is it necessary to call those special meetings of the Board since the dates are set a year in advance and notices are sent to the press in January?

 

 

RCW 42.30.070, which is part of the Open Public Meetings Act, provides that the board of commissioners "shall provide the time for holding regular meetings by ordinance, resolution, bylaws, or by whatever other rule is required for the conduct of business by that body." In the situation you describe, the board could adopt the regular meeting schedule for the year by resolution or by amending its current bylaws to state, for example, that all regular board meetings will be held on the last Thursday of each month (at a stated time), except for the months of November and December, such that in November and December the regular board meeting will be held on the Thursday of the week preceding the Thanksgiving and Christmas holidays. If the board wanted to change this schedule during the year, it could do so but it would need to revise the schedule by either amending its bylaws or adopting a resolution. The district would then notify the media regarding the schedule and any revisions to the schedule. If the board changed any of the regular meeting dates other than by either amending its bylaws or adopting a resolution, such a meeting would be regarded as a special meeting.

Note that the same provision, RCW 42.30.070, also provides: "If at any time any regular meeting falls on a holiday, such regular meeting shall be held on the next business day." If the board adopts a schedule that, for example, makes exceptions for the regular meetings in November and December as above described, such an adopted schedule would be permissible under RCW 4230.070 because the board would be proceeding under a schedule adopted by resolution or bylaw, and the meetings in November and December would not fall on a holiday.

   

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Are phone text messages archival like email messages? Our Exchange Server does not save text messages from phones like it does email so I am wondering about text messages and their archival requirements.

 

 

We spoke with one of the Electronic Records Management Consultants for the Washington State Archives and she indicated that text messages resulting from agency issued cell phones are considered electronic public records subject to retention requirements. As provided in WAC 434-662-040:

Electronic records must be retained in electronic format and remain usable, searchable, retrievable and authentic for the length of the designated retention period. Printing and retaining a hard copy is not a substitute for the electronic version unless approved by the applicable records committee.

An agency is responsible for a security backup of active records. A security backup must be compatible with the current system configuration in use by the agency.

The retention period for a specific text message depends upon the content of the message.

The representative from the State Archives indicated that her office recommends that if a local government provides cell phones for its employees, the agency needs to have clear policies regarding use of the phones, including regarding text messaging. For example, it may be that the agency does not have a system in place to address retention of text messages so that agency’s policies would prohibit use of text messaging for agency issued phones and text messaging more generally in the conduct of agency business.

Alternatively, if the local government chooses to allow use of text messaging, the agency’s policies should make clear that use of text messaging on agency issued cell phones is subject to records retention requirements. If the agency allows such text messaging, the agency needs to have a system in place to retain text messages consistent with retention requirements.

In terms of practical suggestions, some tips are provided in a piece done by Pamela Raymond for "eHow" entitled, "How to Capture a Cell Phone Text Message."

Note that the State Archives has an electronic records website for local governments that has useful advice and resources. We also recommend that you consult with your district’s legal counsel about this issue and developing policies that work well for the district.

   

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Recently, there was a poll done on how members of the governing body felt about an issue. There were no open discussions about the issue. Then the chair of the governing body had our clerk poll the governing body. Only three members were polled and it was somehow passed (three members made a majority). I am interested in the procedures for a poll vote. Does the issue being polled on have to be discussed first? Do all of the members of the governing body have to be polled? Does the poll count as a vote when it was done outside of a meeting of the governing body? leave?

 

 

Voting by a poll (e.g., by telephone or email) of a majority or more of the governing body outside of a meeting of the governing body that is open to the public is a violation of the Open Public Meetings Act (OPMA). A vote of the governing body - "action" by the body - may take place only in a meeting open to the public. Even if the poll vote is not considered to be an official vote by the participants in the poll, that vote can be a violation of the OPMA if the poll participants are aware that a majority or more of the governing body is being polled and they are informed about how the others vote. In that type of situation, the governing body could end up effectively deciding in advance of a meeting not to bring an issue up where it does not have the support of a majority, or to bring it up at a meeting if it does have such support. As such, the governing body would be taking "action" outside of an open meeting in violation of the OPMA. That polling would be considered a discussion of the business of the local government and thus would constitute "action" as that is defined in the OPMA (RCW 42.30.020(3)) because a majority of the governing body would be expressing how they feel about an issue, even if that expression is limited to either a "yes" or "no."

In our publication, The Open Public Meetings Act - How it Applies to Washington Cities, Counties, and Special Purpose Districts (May 2008), we provide the following Q&A at page 7 that is relevant to this issue:

If a majority or more of the members of a governing body discuss city, county, or district business by telephone or email, are they having a meeting subject to the Act?
Since the members of a governing body can discuss city, county, or district business together by telephone or by email so as to be taking "action" within the above definition, the governing body can conduct a meeting subject to the Act even when the members are not in the physical presence of one another. This type of meeting could take many forms, such as a conference call among a majority or more of the governing body, a telephone "tree" involving a series of telephone calls, or an exchange of emails. Since the public could not, as a practical matter, attend this type of "meeting," it would be held in violation of the Act.
Given the increasingly prevalent use of email and the nature of that technology, members of city councils, boards of county commissioners, and special district governing bodies must be careful when communicating with each other by email so as not to violate the Act. However, such bodies will not be considered to be holding a meeting if one member emails the other members merely for the purpose of providing relevant information to them. As long as the other members only "passively receive" the information and a discussion regarding that information is not then commenced by email amongst a quorum, there is no Open Public Meetings Act issue.
(Footnotes omitted.)

Another useful resource on this issue is the Attorney General’s Open Government Ombudsman’s discussion of the following issue: "Can informal communications between members of a governing body be a meeting of the governing body?"

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