Genetic Information Nondiscrimination Act

Posted January 5, 2011 by Kristin Eick
Categories: Employment

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits local government employers with 15 or more employees from requesting, requiring, or purchasing genetic information of an individual or family member of the individual, except as specifically allowed.  A city should not assume that since cities rarely require genetic testing that these regulations have no application to cities.  Genetic information can also include “family medical history.”  Therefore, while your city is unlikely to do genetic testing, you may gather family medical histories for FMLA leave administration, in the course of administering your wellness or insurance programs, or when conducting fitness for duty examinations.  Although there are exemptions for the acquisition of FMLA material and other incidental acquisitions of genetic information, cities should consult with their city attorney about any family medical histories or genetic information that are acquired by the city.


Gendler v. Batiste – Public Records Act and Traffic Accident Reports

Posted November 30, 2010 by Kristin Eick
Categories: Public Records Act, Washington Court of Appeals

In Gendler v. Batiste, the Court of Appeals held that the Washington State Patrol (WSP) was required to disclose historical bicycle accident records of accidents occurring on Seattle’s Montlake Bridge.  The requestor had suffered serious injuries when his bike tire became wedged in the bridge’s grating.  The requestor suspected that the bridge had been unsafe for cyclists since 1999 when the State replaced the bridge decking, and therefore, he sought records of other bicycle accidents from the WSP.  The WSP claimed that these records were exempt from public disclosure under federal law, 23 U.S.C. § 409, unless the requestor agreed not to use the information in litigation against the State. 

Under the Federal Highway Safety Act, states are required to identify and correct high-collision locations by collecting traffic records of accident locations, injury types, and environmental conditions.  Section 409 of the Act protects states from tort liability created by the increased self-reporting of hazardous collision data and provides that reports or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites “shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed” in such reports or data.  The WSP argued that its police traffic collision reports fell under § 409 protection because it provided and WSDOT collected the data for the purposes of identifying and correcting high-collision locations. 

The court disagreed with the WSP, relying heavily upon Pierce County v. Guillen, 537 U.S. 129 (2003), a previous U.S. Supreme Court case reviewing the application of § 409 to Washington’s Public Records Act.  Guillen held that § 409 was inapplicable to information compiled or collected for purposes unrelated to identifying locations and priorities for improvements on the basis of crash experience pursuant to federal law.  The WSP is required to prepare accident reports on state highways under RCW 46.52.060, which the court considered an independent statutory obligation.  Because the WSP did not prepare or use the reports for Federal Highway Safety Act purposes, the protection offered by § 409 did not extend to the WSP by virtue of the fact that it designated WSDOT as its records custodian.  Therefore, the court concluded that while WSDOT was protected by § 409, the WSP was not because it prepared the accident reports for ordinary law enforcement purposes and not for purposes of complying with the Federal Highway Safety Act.

This case should have limited application to municipalities.  First, § 409 does not exempt accident reports from disclosure completely, but only provides that the reports or data cannot be admitted as evidence in a subsequent lawsuit for damages.  Section 409 is not a basis for withholding or redacting documents pursuant to a public records request; the WSP only tried to require the requestor to certify that he would not use the documents in a subsequent lawsuit prior to disclosure.  Second, there should be very limited circumstances in which a municipality is generating or compiling accident reports for Federal Highway Safety Act purposes.  If the reports or data are compiled or collected for unrelated purposes and are held by agencies that are not pursuing Federal Highway Safety Act purposes, § 409 protection will not apply at all.  Simply forwarding accident reports to WSDOT will not protect the documents in a subsequent proceeding.

The case is available here.

Teamsters Local 763 v. City of Mukilteo – Status Quo

Posted November 19, 2010 by Kristin Eick
Categories: Collective Bargaining, PERC, Washington Court of Appeals

This office was recently successful in overturning a trial court decision finding that the City had committed an unfair labor practice by failing to maintain the status quo after the expiration of a collective bargaining agreement.  When a collective bargaining agreement expires, an employer is required to maintain the terms and conditions of employment that existed when the agreement expired while negotiating a new agreement.  In this particular case, the City had agreed to pay health insurance premiums.  The City’s contribution increases were limited to a maximum increase of 11% above the 2001 rates in 2002, 10% above the 2002 rates in 2003, and 10% above the 2003 rates in 2004.  When the contract expired in 2005, the City continued to pay the same dollar amount it paid in 2004.  The Court of Appeals concluded that the City was only required to pay the fixed dollar amount it paid in 2004 during the contract negotiations, distinguishing between other cases of “dynamic status quo.”  For example, in previous PERC cases in which the employer was contractually obligated to pay 100% of the health insurance premiums, the Commission held that the employer would have to continue to pay 100% during the period of contract negotiations and committed an unfair labor practice by continuing to pay the same dollar amount previously paid.  However, because the City’s contribution each year was tied to the dollar amount paid in the first year of the contract, the City’s contribution was a fixed rate rather than a dynamic rate.  If you have any questions about status quo and dynamic status quo, please contact your city attorney.

Fitzpatrick v. Okanogan County – Flood Control Projects

Posted November 9, 2010 by Kristin Eick
Categories: Washington Supreme Court Opinion

In Fitzpatrick v. Okanogan County, 169 Wn.2d 598 (2010),  the Supreme Court held that the County and Washington State had no immunity from liability for an inverse condemnation claim arising out of the construction of a flood control project.  The County and the State had made major improvements to a dike located one-half mile upstream of the plaintiffs’ property, which was designed to provide flood protection to Highway 20 and some other property.  Hydrogeologist reports indicated that the dike work impacted the river by cutting off natural overflow channels, thereby compressing more flood flow into the main channel and reducing the flood conveyance capacity of the river upon which the plaintiffs’ property was situated.  During a flood event, the water washed away the plaintiffs’ home.  The Supreme Court affirmed that the common enemy doctrine did not apply, which allows landowners to alter the flow of surface water to the detriment of neighbors, so long as they do not block a watercourse or natural drainway.  Instead, the Court applied the “natural watercouse rule,” which prevents parties from interfering or diverting water from a natural watercourse and damaging other properties.  Essentially, the Court concluded that the water damaging the plaintiffs’ property was water within a natural watercourse – not surface water – which subjected the County and State to liability. 

This case is troubling since many governmental agencies either actively engage in constructing flood control projects or indirectly support private citizens who sandbag their property to prevent flooding.  Apparently, now flood waters which have formed a channel when they jump the banks of the river cannot be prevented without providing for this capacity in another area of the floodplain.  Presumably flood waters that sheet flow over the floodplain would still be considered outlaw waters subject to the common enemy doctrine.

Arbitration Clauses & Statute of Limitations

Posted October 20, 2010 by Kristin Eick
Categories: General Interest, Washington Supreme Court Opinion

The Washington Supreme Court recently ruled in Broom v. Morgan Stanley DW, Inc. that statutes of limitations under state law do not apply to agreements governed by the Washington Arbitration Act unless the parties expressly agreed that the statute of limitations would apply.  This case may apply to municipalities that have incorporated arbitration clauses into their agreements, though the Washington Arbitration Act does not apply to employment agreements or collective bargaining agreements.  Further explanation of this case can be found here, on OMW’s Healthcare Law Blog.  Please contact your city attorney if you have any questions regarding your agreements containing arbitration clauses.

O’Neill v. City of Shoreline – Metadata

Posted October 15, 2010 by Kristin Eick
Categories: Public Records Act, Washington Supreme Court Opinion

The Supreme Court recently affirmed that metadata is a public record.  However, a normal public records request for an e-mail does not include a request for metadata unless metadata is specifically mentioned and requested.  This case is a good reminder of the dangers of using personal computers for city or agency business, as the Court held the City of Shoreline violated the Public Records Act if (1) the City (or the Deputy Mayor) refused to search the Deputy Mayor’s hard drive for the missing metadata that was requested; (2) the City could not locate the missing metadata after a search; or (3) located the metadata, but the metadata was different than the metadata already disclosed pursuant to the requests.  In addition, this case is a reminder that public records, including associated metadata if requested, cannot be deleted when a records request is pending.  If you have any questions about public records management or retention, please contact your city attorney. 

The O’Neill majority opinion is available to view here.

Public Employees’ Privacy and Technology

Posted June 29, 2010 by Scott Snyder
Categories: Employment

On June 18, the U.S. Supreme Court overturned a Ninth Circuit Court of Appeals decision in City of Ontario California v. Quon.  Slip Op No. 08-1332.  You may remember that the Ninth Circuit had found that a city’s discharge of a police officer for inappropriate use of a pager violated the employee’s privacy expectations.  The Supreme Court’s decision, overturning the Ninth Circuit holding, was based on the application of the 4th Amendment protections to public sector employers.  The Court’s holding was relatively narrow and expressly does not address whether a city’s reading of text messages violates the federal Stored Communications Act, 18 U.S.C. 2701, nor does the ruling establish any “far reaching premises that defined the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communications devices.”  The Supreme Court in its decision avoided “elaborating too fully on the … implications of emerging technology.” 

 The decision does provide some guidance to public employers:

1.         The Supreme Court noted that the City of Ontario’s use policies did not “apply, on its face, to text messaging.”  Employers should review their policies carefully to make sure that they fully warn employees that the use of City e-mail facilities, telephone, text messaging and other electronic equipment, does not create a right to privacy.  In light of evolving technology, you should consider whether your e-mail policy takes all City-supplied devices into consideration.

2.         The original Ninth Circuit decision hinged in large part upon the communications between the terminated employee and his supervisor.  While the employer’s policy attempted to limit privacy expectations and reserve the right of review, comments by the supervisor indicated that the employee had some privacy expectations.  The Supreme Court highlighted the importance of clear, comprehensive policies involving electronic communications stating: 

“Employer policies concerning communications will of course shape the reasonable expectations of their employees, especially the extent such policies are clearly communicated.”

This statement, again, emphasizes that your best protection is having clear, enforceable personnel policies. 

Please note that there is a distinction between the review which a public employer may conduct and public records which are required to be disseminated under the Washington Public Records Act.  As the Attorney General’s model rules indicate, employees’ personal communications using City e-mail are not public records and therefore are not subject to dissemination.  What the public may request and receive is different than what a public employer may review in order to investigate complaints, manage its employees, and retrieve other  public documents.

FTC Extends the Deadline for Red Flags Rule (Again)

Posted June 9, 2010 by Kristin Eick
Categories: Red Flags Rule

At the request of several Members of the Congress, the FTC has delayed enforcement of the Red Flags Rule until December 31, 2010.  According to the FTC’s press release, during the delay period, Congress will be considering legislation that will alter the scope of entities covered by the Rule.  However, the FTC stated that if Congress passes legislation limiting the scope of the Red Flags Rule with an effective date earlier than December 31, 2010, the FTC will begin enforcement as of that effective date.

The press release can be found here.

Court of Appeals issues decision in Kitsap County Prosecuting Attorneys Guild v. Kitsap County

Posted May 17, 2010 by OMW Municipal Law
Categories: Public Records Act, Washington Court of Appeals

By Charles D. Zimmerman & Julie K. Norton

On May 11, 2010, the Division II Court of Appeals issued a decision in Kitsap County Prosecuting Attorneys Guild v. Kitsap County, No. 39196-1-II, confirming that an award of attorneys fees, costs, and penalties under the Public Records Act (“Act”) is mandatory if a court determines that the government agency wrongfully withholds or fails to disclose public records.

 In Kitsap County, the Kitsap Sun (the “Sun”) filed a public records request on July 21, 2008 with Kitsap County (the “County”) requesting a database of County employees containing the employees’ names, number of years of employment with the County, department assigned to within the County, job title, office phone number, annual pay rate, and town of residence.  On July 25, 2008, the County sent the Sun a “five day letter” acknowledging that it received the Sun’s request. The County stated that “[a]ll documents responsive to this request will be reviewed and prepared for release.  We hope to release these documents no later than  August 8, 2008.”  

On August 8, 2008, the County released all of the requested information except for the employees’ towns of residence.  At the time of release, the County has still not determined whether the employees’ towns of  residence were exempt from disclosure.  In a letter to the Sun, the County stated in part:

 Under the [PRA], residential addresses of public employees and volunteers are exempt from inspection and copying.  See RCW 42.56.250.  It is not clear to the County whether “town of residence” is included within the meaning of “residential  address.”

 The County is taking action to determine whether County employees object to the public release of their “town of residence”.  If employees consider the release of their town of residence to be a violation of the [PRA] or an invasion of privacy then the County may file a declaratory judgment action and ask the court to rule whether employees’ “town of residence” is exempt from public disclosure.

  Read the rest of this post »

The Right to be Obnoxious

Posted May 5, 2010 by OMW Municipal Law
Categories: Open Public Meetings Act, Uncategorized

By Phil Olbrechts

Ogden Murphy Wallace, PLLC

Published in CityVision Magazine, March/April 2010

Does the First Amendment and the Open Public Meetings Act (“OPMA”) protect obnoxious people?  The short answer is that they do protect obnoxious people, but not really obnoxious people.   That’s why obnoxious people are free to call you short-sighted and over your head at City Council meetings, but they can’t make disparaging remarks about the size of your nose or your choice of wardrobe.  So as you pack your Council chambers to overflowing with your stellar public engagement program, here are the boundaries on how “engaged” your audience can truly be:

1.  The Right to Speak.  A common misperception is that everyone can talk at city council meetings.  Not true.  People have a right to attend, but they don’t have a right to speak unless you invite them to speak (or there’s a mandatory public hearing).  The citizen comment period portion of the agenda is the invitation that most city councils do extend to their citizens.  If you put that on the agenda, the public can say their peace on anything related to City business.  It’s a time honored tradition in this Country to denigrate and humiliate those who volunteer to serve their communities,  so if you let the public speak they get to make fun of you.  But the comments have to be related to City business, so commenting on the size of your nose or your wardrobe doesn’t have to be tolerated.  If you don’t want people to talk, just keep the citizen comment period off the agenda.  Then you’re free to toss out anyone who tries to say something during your meeting, and they in turn can toss you out at the next election. 

2.  The Right to Attend.  Obnoxious people have a right to attend City meetings, really obnoxious people do not.  The OPMA gives every citizen the right to attend Council meetings and any other meeting held by a “governing body,” which includes all decision- and policy-making bodies such as planning commissions, civil service commissions and parks boards.  However, the OPMA recognizes that people disrupting meetings can be “removed.”  Disrupting a lawful public assembly is not protected by the First Amendment and constitutes disorderly conduct, a crime.  Police can haul people away for committing crimes, but you cannot.   So if that citizen making fun of your nose makes loud honking noises every time you speak and simply will not stop, call in the police.  Just be very sure that the really obnoxious person is being disorderly.  Hauling people away for the wrong reasons can lead to nasty lawsuits involving assault, false imprisonment, federal civil rights violations, and intentional or negligent infliction of emotional distress.  It also creates a situation where the police are put under pressure from their civilian superiors to take action against their own better judgment.  Calling in the troops should always be a last resort.

3.  The Right to Hurt Your Feelings.  The public does have the right to attack your skills and accomplishments (or lack thereof) as a public servant.  They can call you unqualified and short-sighted, but any examples they use better be accurate.  Elected and appointed officials are generally fair game for any opinions and nasty comments, so long as any factual allegations are not made in reckless disregard of the truth (called defamation in this state, slander in others).  For example, it’s fair game for a citizen to comment that the quality of your contribution to council meetings leads him to believe that you must be drunk.  If said in a facetious manner, this is just opinion.  However, if the citizen states as a matter of fact that you show up at council meetings drunk and it turns out later that his only evidence is the jewels of stupidity that drop from your mouth on a regular basis, that’s probably defamation.  Defamatory comments are not protected by the First Amendment, so you can stop them from being made at a Council meeting.  The presiding officer (the Mayor in Council meetings) should simply ask “what evidence do you have that Councilmember Smith appears at Council meetings drunk?”  If no intelligible answer is forthcoming, the officer can shut that line of discussion down. If you are the target of defamatory comments, you have a cause of action for monetary damages against the defamer.  Keep in mind, however, that you need to prove some damage in order to reap some compensation.  If nobody takes the defamer seriously (maybe he was the one drunk), damages may be minimal.

Although citizens have a right to be offensive, they can’t be really offensive.  There are some limits to personal attacks, what the courts call “fighting words.”  “Fighting words” are those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.  The courts have not shown much consistency in what constitutes a “fighting word,” so it’s best to err on the side of caution when deciding whether to stop a personal attack on that basis.  This is why facetiously exclaiming that a council member must be drunk should be tolerated.  Personal insults should be directed specifically at an individual and highly inflammatory to be excluded.  “You, sir, are a LIAR and a scoundrel” may qualify as fighting words (even though it’s the best entertainment all night), although it could get through rephrased as “I have trouble believing you, given the deliberate inaccuracies of your prior comments.”   Comments like “I’ve taped a bomb to the bottom of your chairs” would qualify as something inciting an immediate breach of the peace, but are highly appreciated if true. 


Conclusion:  I have liberally used the term “really” in this article to emphasize that First Amendment rights are often a matter of degree, and a subjective one at that.  A little common sense and a respect for the right of citizens to express their opinions will be enough to guide you through most situations involving obnoxious people.  Always err on the side of letting comments come in. Only forcibly remove a person when that person is making it very difficult to hold your meeting.  Following these basic guidelines will keep you out of trouble and honor the First Amendment as intended by our constitution.

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