At the 12/18/2019 Jefferson Healthcare Public Hospital District Commission meeting, Commissioner Ready made a motion that the commission adopt the policy that “if a commissioner decides to record a meeting on their own device, uh, it will be announced and no further discussion of it will be had since they’re exercising their basic right.”

The motion was rejected 3-1.

The hospital attorney present at the 12/18 meeting said this in regards to the motion:  “The, the threshold question is whether or not, uh, a board member can record over the objection of other board members and, uh, I don’t know the answer to that, so I would have to research that before our next meeting. Uh, I need some time to look into that.”

After the motion failed by a vote of 3-1, board chair Commissioner Reinstra said, “Chair is opposed, so it’s three, uh, motion fails. I might mention, Matt, if you want to pursue this and come up with something that would protect the district then maybe work with [the hospital attorney], that, you know, in a matter that, uh, that we know that the district would be protected and you could record it then, um, I suggest you, you do that and bring it back in January when we actually vote for the um, the, the book and at that time, we could still make that motion and, uh.”

In response, Commissioner Ready said,” I made the motion I thought protected the district the best. I don’t know. I mean I’m open to whatever suggestions, but that was intended to protect us from doing something inappropriate when someone is exercising a basic right, you wanna be careful how you handle that.”

March 26, 2014 Email from Matt Ready to Marie Dressler (Board Chair) and Mike Glenn (CEO)

—–Original Message—–
From: Ready, Matthew
Sent: Wednesday, March 26, 2014 9:21 AM
To: Glenn, Mike; Dressler, Marie
Subject: Audio Recording Public Meetings

Dear Mike,

I would like for us to work together to avoid any further public confrontations or drawn out conflicts over the issue of audio recordings of commission public meetings.

To best do my job as a hospital commissioner I require a complete record of our public meetings.  I require this complete record to be in my possession the moment our public meetings conclude so that I might immediately review any portion of the meeting events and begin considering next steps.  I also need to be able to easily share the complete records of our public meetings with any interested members of the public so that I might ascertain their opinions, ideas, feedback, suggestions, and advice on any aspects of hospital district governance that they are interested in.

I am willing to consider not recording the meetings myself, if I have an equally reliable solution that will guarantee I walk out of every public meeting of the hospital commission with a complete record of the meetings events.  I would like to work with you to find such a solution that is convenient for everyone involved.

I believe the simplest solution is that I record the meetings on my personal recording device and immediately provide a copy of the file to administration after the meeting.  I could simply walk over to the commission office, plug in my usb cable, and upload the file to a directory on the file server.  The file is already dated by the software.  The hospital Information Technology department keeps backups of all files on the file server.  If anyone ever requests one of the audio files from a meeting, then someone could simply copy the file to a thumb drive for the person.  The cost of storing hundreds of hours of audio files is negligible.  Also the labor involved with copying a file onto a thumb drive is negligible.  Such a process is not complex or costly which is probably one of the reasons why so many other public governing bodies record audio or video of their public meetings.

As you noted, any handwritten notes a hospital commissioner makes during a public meeting is subject public records standards.  Audio recordings, are simply a form of note taking.  We may need to refine it, but the policy regarding commissioner notetaking you described is already in place and as long as I make my recordings available in a timely manner, we appear to be keeping with the policy we already have.

I hope this is sufficient to resolve this matter.  I believe we would all prefer to be spending our time working to improve our efforts at addressing the healthcare needs of our community.  I need an audio recording of our public meetings to do that work.

We have another public meeting on 4/16/2014.  I would like to record this meeting.  Please let me know if my recording the meeting will result in yourself and/or the board chair delaying the meeting progress on the agenda, recessing the meeting, or adjourning the meeting as happened at the 3/19/2014 meeting.  I believe all these actions in response to me recording the meeting are unnecessary and unseemly disruptions to board business.  Yet, if I know these actions are going to be your response, I will make extra efforts to find interested members of the public who want to record the meetings and can attend the 4/16/2014 meeting.  Please understand that many of the people I would ask are working poor and unable to attend though interested – which is another reason I record these meetings.

I would like to resolve this matter and move on to our work.  Part of my ability to do this work involves making a recording of our meetings as I believe I am allowed to do now.

Can you please let me know by 3PM next Wed 4/2/2014 if we can agree to this?

Respectfully,

Matthew Ready

PS
For your records I have attached a copy of an Opinion by the Washington State Attorney General’s Office recording the recording of Open meetings of County Government

Excerpt from Attorney General’s Opinion

This document is available online here:

http://www.atg.wa.gov/AGOOpinions/Opinion.aspx?section=archive&id=9332#.UzL47q1dVK5

PUBLIC MEETINGS – OPEN PUBLIC MEETINGS ACT – COUNTIES – RECORDING OFFICIAL PROCEEDINGS – Authority of county to restrict video and/or sound recording of county meetings.

1. A county does not have authority to ban video or sound recording of a meeting required to be open to the public by the Open Public Meetings Act (RCW 42.30); the county could regulate recording only to the extent necessary to preserve order at the meeting and facilitate public attendance.
2. A county has authority to ban video or sound recording of any lawful executive session of a public meeting.
3. If a meeting is not an “open public meeting” as defined in RCW 42.30, but is required to be an open meeting by some other statute, the extent of the county’s authority to restrict recording of such a meeting would depend on the language and the intent of the controlling statute.
4. If a county officer conducts a “private meeting” as may be defined in law, the county has authority to restrict or prohibit the recording of such meetings.

*********************

November 30, 1998

The Honorable Randall K. Gaylord
San Juan County Prosecuting Attorney
350 Court Street
P.O. Box 760
Friday Harbor, WA 98250

Cite As: AGO 1998 No. 15

Dear Mr. Gaylord:

By letter previously acknowledged, you have requested our opinion on the following paraphrased questions:

May a county legislative body prohibit an individual from using a video or audio recording device to record a meeting or hearing conducted by county officials? If such recording cannot be prohibited, may the legislative body impose restrictions on the use of such recording devices?

BRIEF ANSWER

A county is subject to the Open Public Meetings Act which generally requires that meetings of the governing body be open to the public and that no conditions precedent to attendance by the public, except for orderly conduct, may be imposed. Therefore, a county legislative body may not ban the use of recording devices from the open portion of a meeting held pursuant to the Open Public Meetings Act. The county legislative body may impose restrictions on the use of recording devices, but only to the extent necessary to preserve the orderly conduct of the meeting. Executive sessions held pursuant to the Open Public Meetings Act are not open to the public, and the county legislative body may ban the use of recording devices at executive sessions. The county legislative body may ban the use of recording devices at public meetings that are not subject to the Open Public Meetings Act or to some other state statute that limits county authority. A county legislative authority may ban the use of recording devices to record conversations at private meetings not open to the public.

March 26, 2014 Mike Glenn Response

Thanks Matt.
I’ll defer to Marie on this.  I am leaving tomorrow for vacation and will be out of the office until April 8.
Thanks,
MG

March 27, 2014 Marie Dressler Email

________________________________________
From: Dressler, Marie
Sent: Wednesday, March 26, 2014 5:34 PM
To: Ready, Matthew; Glenn, Mike
Subject: RE: Audio Recording Public Meetings

Hello Matt,

Actually, audio recording of  Board meetings is a Board decision.

At the conclusion of our last  meeting  we, the Board, asked Mike to develop a policy, procedure and recording methodology to present to the Board for our review and consideration.  At this time, the board can then discuss and take action , if appropriate.

Mike and I participated in a teleconference with counsel and were made aware of the legal implications to the District related to recording Board meetings.  If we are going to do this, then we are going to do it correctly.  Interestingly,  according to counsel, it is not common for a Public Hospital District to record it’s board meetings.

Based on this, Matt,  it would certainly be best if you chose not to exercise any right you have, to record the 4/16 meeting and allow the Board the time and space to make a thoughtful and deliberate decision on this issue.

Marie Dressler

Board Chair

Matt Ready Email to Marie Dressler

________________________________________
From: Ready, Matthew
Sent: Thursday, March 27, 2014 2:28 PM
To: Dressler, Marie; Glenn, Mike
Subject: RE: Audio Recording Public Meetings

Marie,

I appreciate your advice and recommendation that I not record board meetings.  I respectfully disagree with your opinion that this is the best course of action.  As I said, I do not believe I can best perform my duties as hospital commissioner without a complete record of the meetings.

The only relevant legal implications of recording meetings I am aware of is that, if my recording is considered a public record, the hospital district should store it and make it available when requested by the public.  My previous letter outlined a simple low cost process whereby this practice is easily doable.

The board is welcome to take as much time as it likes to explore and consider the questions, “Does this board want the board meetings audio recorded?” and “Shall this board require the CEO to audio record the board meetings?”  On the other hand, I believe all the commissioners are already firmly entrenched in their individual answers to these questions.  I believe dragging out time spent on these predetermined answers is a waste.  Nonetheless, if it is the opinion of the majority of the board that it does not “want” the meetings recorded, this opinion does not prohibit anyone, including myself, from recording the meetings.

As the open public meetings act declares, “The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.” I need to know exactly, word for word, what is said during our public meetings.  The board does not have the authority to decide what is “good for [me] to know and what is not good for [me] to know.”

In conclusion, though I hear your advice, I will respectfully decline to follow it.  I sincerely hope if you wish to spend any more time attempting to persuade me not to record the meetings, you will do so before the meetings begin, and not use up valuable public meeting time for such a discourse.  Also, if you intend to use your authority as chair to recess or adjourn the meeting in response to my recording, I hope you will discuss this action with me prior to the meeting so that we can try to avoid any unnecessary and unseemly public “showdown.”  In fact, I am happy to sit with you and the hospital district attorney while you elaborate in detail as to your reasons why you believe it is best that I not record the meetings.  Perhaps such a discussion will uncover a reasonable solution for everyone?  If you wish to have such a meeting, please let me know and I will be happy to join you.

As a final note, will you please forward me the name and contact information for the attorney you and Mike spoke to regarding this issue?  I would like to contact the attorney and ask some clarifying questions and receive my answers directly from a legal authority.

Sincerely,

Matt Ready

Marie Dressler Email to Matt Ready

Matt,

When you, as an elected member of the Hospital District board, decided that you were going to personally record Board Meetings as a member of the board, CEO Mike Glenn and I, as current  Board chair, sought advice from the District’s counsel.  This was in order to ensure that the District would not be put in legal jeopardy and that we, personally, were not uninformed of our responsibilities.  Neither Mike nor I are lawyers, and neither are you, for that matter.

Having staff research and formulate a policy and procedure and a methodology to comply with the Public Records Act was what Mike was tasked to do at the end of that meeting.

I do think that it is very presumptuous of you to assume that our colleagues are already “firmly entrenched in their individual answers to the questions” you pose in your note to me. I can only speak for myself, and I am  very interested to hear other board members’ opinions, have some respectful and lively discussion and make a decision as a Board.

Should you choose to personally contact and seek advice from the District’s counsel, I want to make it crystal clear that any such consultation(s) will be solely and totally at your own expense. Counsel’s name is [XXXXXXX BB in Seattle];  I  have no contact information for him.

You state that you appreciate my advice and recommendation that you not record board meetings;  what I am telling you is what District’s counsel advised Mike and I, NOT my personal opinion.

Marie

At the October 14 board meeting, board chair Jill Buhler made the following statement about the recording issue:

Speaker 45 (Consultant Karma, hired by CEO, frequent speaker at AWPHD conferences):         Does anybody have an issue if Matt records a meeting with his own personal device?

Speaker 48 (JBuhler Board Chair):         Yes, and the MRSC agrees with us.

Who is the MRSC?

The Municipal Research and Services Center (MRSC) is a nonprofit organization that helps local governments across Washington State better serve their citizens by providing legal and policy guidance on any topic. At MRSC, we believe the most effective government is a well-informed local government, and as cities, counties, and special purpose districts face rapid changes and significant challenges, we are here to help.

For more than 80 years, local governments have turned to MRSC for assistance on every topic imaginable. Our trusted staff attorneys, policy consultants, and finance experts have decades of experience and provide personalized guidance by phone and email, at conferences and training sessions, and through our extensive online resources. Every year we answer thousands of questions as we help staff and elected officials research policies, comply with state and federal laws, and improve day-to-day operations.

MRSC is also at the forefront of emerging issues that affect local government operations. We are the go-to source of information on major legislation, including the Growth Management Act, the legalization of recreational marijuana, and the ever-evolving complexities of the Public Records Act, to name a few. When the legal landscape changes, we are here to clarify the issues and help local government leaders make the right decisions for their communities.

MRSC serves all 281 cities and towns in Washington, all 39 counties, and hundreds of special purpose districts, state agencies, and other government partners. Originally established in 1934 as the University of Washington Bureau of Governmental Research, MRSC has operated as a private nonprofit since 1969.

What does the MRSC do for public hospital districts and other municipal government agencies?

• Free One-on-One Consultation:  Have a question? Ask MRSC! Officials and employees from eligible government agencies can use our free one-on-one consultation service. With one call or click you can get a personalized answer from one of our trusted attorneys, policy consultants, or finance experts!
• Explore topics on the MRSC website to get legal and policy guidance on hundreds of local government issues, including helpful explanations, relevant statutes and court decisions, examples of different policy approaches, and recommended resources for further information.

What is the MRSC Opinion on hospital commissioners and public hospital district employees pressuring another public hospital commissioner to turn off their personal recording device during an open public meeting?

Below is the response I received to my inquiry.  I was very curious if Commissioner Buhler was right that the MRSC would “agree” with the actions taken to attempt to pressure and intimidate me into turning off my recorder.

___________

Matthew:

 While I can give you some general guidance on public meetings and the OPMA, MRSC’s role is not to be the legal counsel for an agency or for an employee/official of an agency. We provide general guidance on municipal issues, but we do not provide specific legal advice. Thus, I cannot tell you whether there were any OPMA violations or crimes committed in the transcript you provided. You will need to consult with your agency’s attorney or with a private lawyer on that question.

I did spot a question in your email that I am able to answer: Can a commissioner or a private citizen record a public meeting of the hospital commission?

The answer is, yes, any person can audio record an open public meeting of the commission so long as it is not done in a disruptive manner. See AGO 1998 No. 15. However, while a recording done by a private citizen is not a public record, a personal recording done by a commissioner may be. This area is not crystal clear from a PRA perspective, but the Washington State Archives has previously indicated that, if the agency itself doesn’t record the meeting and the only recording is made by a commissioner on a personal device, that recording is subject to a 6-year retention. If the Archives considers this type of recording to be subject to retention under chapter 40.14 RCW, then it should be considered a public record under chapter 42.56.RCW. I am not aware of any case law on this issue, although there are some cases addressing records on personal devices/accounts (see our blog posts on this issue here and here). PRA/retention issues is likely one reason why an agency would want to adopt a policy outlining expectations for recording of a meeting.

######  Name Redacted (because someday people will be very embarrassed for their roles in this fiasco)

MRSC Managing Attorney

Conclusion

So I think we need to rewrite the MRSC about page:

The Municipal Research and Services Center (MRSC) is a nonprofit organization that helps local governments across Washington State better serve their citizens by providing legal and policy guidance on any topic – unless that topic is recording a public meeting.  We believe you have the right to record a public meeting, but if you are harassed by people and pressured to stop recording the meeting, we are going to stick our heads in the sand like an ostrich and say “I dunno…”.   At MRSC, we believe the most effective government is a well-informed local government (except when it comes to respecting basic rights regarding access to information shared at open public meetings of public hospital districts), and as cities, counties, and special purpose districts face rapid changes and significant challenges, we are here to help as long as you don’t ask us any actual serious pressing questions covering basic rights, democracy, and moral behavior in open public meetings.

Much better.  We need to try to keep our descriptions of reality accurate.  What else do we have if not a true record of reality?