Supreme Court Assesses Penalty of $371,340 for Public Records Act Violation

Posted March 29, 2010 by Angela Belbeck
Categories: Public Records Act, Washington Supreme Court Opinion

The Supreme Court issued its decision in Yousoufian v. Office of Ron Sims, assessing a penalty for violation of the Public Records Act at $45 per day for 8,252 days (differing lengths of time for various categories of records), for a total penalty of $371,340.  Attorneys fees will be added to this total.

In 1997 Mr. Yousoufian made two public records requests to the Office of the King County Executive for records related to studies on sports stadiums.  Over the course of several months, King County released many of the records requested, but not all.  In March of 2000, Mr. Yousoufian filed suit against the County.  King County located additional responsive records and provided those records to Mr. Yousoufian.  The trial court found that King County’s delay in releasing the records violated the Public Records Act (“PRA”) and awarded penalties to Yousoufian at the rate of $5 per day.  Yousoufian appealed the method of calculation and penalty to the Court of Appeals.  In 2004 the Court of Appeals held that the method of calculation was appropriate (per category of records vs. per record), but that a penalty of $5 per day was an abuse of judicial discretion.  On review, the Supreme Court agreed that the $5 penalty was unreasonable considering that the County acted with gross negligence and remanded to the trial court for imposition of penalties greater than the $5 per day minimum.  On remand, the trial court imposed a penalty of $15 per day.  Yousoufian again appealed, claiming the $15 per day penalty was not enough.  The Court of Appeals agreed.  The County then petitioned for review by the Supreme Court.

In a 5-to-4 decision, the Supreme Court affirmed the Court of Appeals, holding that the trial court’s penalty of $15 per day was an abuse of discretion.  In its analysis, the Court began by recognizing the PRA provides no specific indication on how a penalty is to be calculated, then turned to the few reported cases dealing with penalties.  Those cases provide that the existence or absence of bad faith and agency culpability are factors to consider in setting the penalty, along with foreseeable economic loss and the public importance of the issue to which the request relates.  In addition, the Court stated that deterrence is another factor to consider in determining the penalty.  The Court determined that the abuse of discretion standard was not enough, and given the few published cases to offer guidance to trial courts, followed past precedence of reviewing courts providing guidance to trial court judges in exercising their discretionary authority.  The Court set out mitigating factors that may serve to decrease the penalty, including: (1) lack of clarity of the request; (2) agency’s prompt response or legitimate follow-up inquiry for clarification; (3) agency’s good faith, honest, timely and strict compliance with PRA procedural requirements; (4) proper training and supervision; (5) reasonableness of explanation for noncompliance; (6) helpfulness of the agency; and (7) the existence of agency systems to track and retrieve public records.  The aggravating factors that may support increasing the penalty include: (1) delayed response by the agency, especially in circumstances when time is of the essence; (2) lack of strict compliance with procedural requirements (3) lack of proper training and supervision; (4) unreasonableness of any explanation for noncompliance; (5) negligent, reckless, wanton, bad faith or intentional noncompliance with the PRA; (6) dishonesty; (7) public importance of the issue to which the request is related (where importance was foreseeable to the agency); (8) personal economic loss (where foreseeable to the agency); and (9) deterrence considering the size of the agency and the facts of the case.

The Supreme Court’s guidance to judges in setting penalties is a helpful roadmap for agencies to consider as they process public records requests.  Training is essential to avoid violations in the first place, but it may also mitigate penalties in the event a violation is found.


The Latest on Regulation of Firearms

Posted March 25, 2010 by OMW Municipal Law
Categories: General Interest

Two recent court decisions in Seattle provide clarification on regulation of firearms.


On February 10, 2010, King County Superior Court Judge Catherine Shaffer signed an Order Granting Plaintiffs’ Motion for Summary Judgment in the case of Chan v. Seattle (“State Court Order”).  The State Court Order found that the Seattle Department of Parks and Recreation’s Rule/Policy No. P 060-8.14 (“Firearms Rule”) violates a Washington statute, RCW 9.41.290, and enjoined (stopped) the City from enforcing the Firearms Rule.  As part of the State Court Order, Judge Shaffer found that “Plaintiffs have a clear legal or equitable right to carry firearms under federal and state constitutions.”  The statute that the State Court Order is based on states, in part, that the state “fully occupies and preempts the entire field of firearms regulation within the boundaries of the state . . . . Cities, towns and counties or other municipalities may enact only those laws and ordinances relating to firearms that are specifically authorized by state law. . . . Local laws and ordinances that are inconsistent with, or more restrictive than, or exceed the requirements of state law shall not be enacted and are preempted and repealed. . . .”

On March 11, 2010, in a federal case called Warden v. Nickels, United States District Court Judge Marsha Pechman filed an Order Granting Motion to Dismiss (“Federal Court Order”) dismissing a challenge to the Firearms Rule.  The Federal Court Order refers to the State Court Order, but the Federal Court Order addresses different issues; specifically, whether the Firearms Rule violates the U.S. or Washington State Constitutions.  The Federal Court Order holds that the Firearms Rule is not unconstitutional under either the U.S. Constitution’s Second Amendment or Fourteenth Amendment or under the Washington State Constitution. 

In other words, the City of Seattle’s Firearms Rule is no longer in effect because it violates a state law (RCW 9.41.290), but under the Federal Court Order, it would be possible for the City to enact a rule like the Firearms Rule if the state statute allowed for it.  One or both of the orders could be modified by subsequent court decisions or legislative action, however.

Google Fiber For Communities

Posted March 5, 2010 by OMWHealthLaw
Categories: Telecommunications

Last month Google issued a Request for Information (“RFI”) for cities interested in being Google’s test case for their newly announced ultra-high speed broadband network.  Google claims it can deliver high speed internet 100 times faster than most Americans have currently.  Google is looking for applicant cities (or a group of cities) that have populations between 50,000 and 500,000.  The deadline to respond to the RFI is March 26, 2010.

For more information go to:

If you are interested in applying and would like assistance with the application please contact Elana Zana.

Making Ends Meet in Difficult Economic Times – Evaluate Utility Rates

Posted March 1, 2010 by Chuck Zimmerman
Categories: General Interest, Utility Taxes

Many small cities (and towns) are struggling economically and finding it difficult to operate in our current economic climate.  Cities, both big and small, are suffering from reduced sales tax revenues.  The slowdown in the real estate market has led to reduced revenues from real estate excise taxes.  How can a city or town survive? 

One answer may be found by re-examining the current rates and charges imposed by the city utilities, particularly water and sewer.  The provision of water and sewer services by a city is a classic municipal function.  After the city has explored all other methods of reducing costs, including fully evaluating whether staffing level changes are necessary, the city should examine what it truly costs to operate its water or sewer system and make sure it is recouping all of its costs through the rates and charges to customers located both inside, and to the extent they exist, outside of the city.  It may be that it is time to re-evaluate what the rates and charges should be for those receiving these city utility services.  Similar statutes for setting water and sewer rates provide that, in classifying city utility customers, among other reasonable grounds for distinction, the city may examine the following factors: 

            •           The difference in cost of providing the service to the customers.

            •           Whether the customers are located within or outside of the city.

            •           The difference in maintenance, operation, and repair associated with the parts of the system serving the class of customer.

Other specific factors are identified for water and sewer systems in RCW 35.92.010 and RCW 35.67.190, respectively.  Read the rest of this post »


Posted February 16, 2010 by Scott Snyder
Categories: Employment

A recent US District Court decision emphasized the role that agreements regarding K-9 reimbursement and stipends can play in avoiding overtime liability.  In Hoffman v. City of Lake Jackson, the U.S. District Court (Southern District of Texas), held that a memo stating that a K-9 officer would receive a $100 a month stipend and 4 hours of leave per week for off-duty hours spent caring for a drug-sniffing dog was a valid defense to the officer’s claims for unpaid overtime under the Fair Labor Standards Act. 

The U.S. Department of Labor Regulations recognize that it is “difficult to determine the exact hours worked” when an employee works at home.”  29 C.F.R. §785.23.  In such situations, the regulations state that “any reasonable agreement of the parties which takes into consideration all of the pertinent facts will be accepted.”   Ibid.

Exactly what constitutes a reasonable agreement is not well established.  The DOL and the Ninth and Sixth Circuits have both addressed the issue.  The Ninth Circuit held a city agreement with a K-9 officer was not reasonable “because it failed to take into account the number of hours she actually worked” caring for her dog.  Lever v. City of Carson, 360 F.3d 1014 (Ninth Cir. 2004).  In Lever the officer was paid a flat fee of $60 every two weeks, the equivalent of one hour’s pay per week. 

The Sixth Circuit, however, ruled in Brock v. City of Cincinnati, 236 F.3d 793, 806 (6th Cir. 2001), that an agreement providing straight time for 17 minutes per day of off-duty dog care was reasonable even if it “far under-approximated the actual amount of FLSA work performed by the plaintiffs.”  There was no evidence that the employer was unaware that the agreement did not reflect the actual time worked and the court held the agreement to still be “reasonable.”  The Brock ruling upholds the general principle that any agreement should reflect the actual time worked to be considered “reasonable” under 29 C.F.R. §785.23.

To save your accounting department from headaches, a police employer should consider reaching agreements with K-9 officers regarding a flat rate of pay for off-duty dog care.  Any such agreement should take into account the amount of time actually spent by the officer and include that information in the agreement.  We would be happy to work with you to establish an agreement taking advantage of the regulation.

Clarification Regarding Privilege/Exemption Logs Under Public Records Act

Posted February 2, 2010 by Julie Norton
Categories: Public Records Act, Washington Supreme Court Opinion

Our office continues to receive numerous inquiries from our public agency clients regarding their responsibility to complete a privilege/exemption log in response to a request for public records under the Public Records Act (“PRA”), located at RCW 42.56, et. seq.  A series of reported and unreported cases from Washington Courts over the last calendar year has underscored the importance of preparing a timely, complete, and accurate privilege/exemption log in response to any and all public records requests wherein records will be withheld due to exemption or privilege.

Prior to January 22, 2009, a public agency desiring to withhold records in response to a public records request due to exemption or privilege was required to provide the requestor with the claimed exemption, and a brief explanation of how the exemption applies to the record or portion withheld. RCW 42.56.210(3).  In Progressive Animal Welfare Soc’y v. Univ. of Wash., 125 Wn.2d 243 (1994) (“Paws II”), the Washington Supreme Court attempted to clarify the statutory requirement, providing as follows:

Silent withholding would allow an agency to retain a record or portion without providing the required link to a specific exemption, and without providing the required explanation of how the exemption applies to the specific record withheld. The Public Records Act does not allow silent withholding of entire documents or records, any more than it allows silent editing of documents or records. Failure to reveal that some records have been withheld in their entirety gives requesters the misleading impression that all documents relevant to the request have been disclosed. Moreover, without a specific identification of each individual record withheld in its entirety, the reviewing court’s ability to conduct the statutorily required de novo review is vitiated.

 Id. at 270.

Read the rest of this post »

Liability for Inmate Suicide

Posted January 29, 2010 by Jim Haney
Categories: 9th Circuit Opinion

In Clouthier v. County of Contra Costa (decision issued on January 14, 2010), the Ninth Circuit held for the first time that corrections officers and mental health professionals at municipal jails are liable for the suicide of an inmate only if they show a “deliberate indifference” to the inmate’s health and safety.  Under the “deliberate indifference” standard, a court asks whether (1) an inmate was confined under conditions posing a “substantial risk of serious injury,” and (2) whether the corrections officers or other personnel involved knew of and were deliberately indifferent to that risk.  With respect to suicidal inmates, this means that an officer or mental health professional must know that the inmate is suicidal and that the conditions under which the inmate is confined (such as placement in the general population, lack of precautions, failing to keep on a watch list) pose a substantial risk that the inmate will attempt to commit suicide. 

In the Clouthier case the court found that there was insufficient evidence to establish that the corrections officers who were on duty at the time of the suicide had the requisite knowledge for liability and dismissed claims brought by the inmate’s family.  The court found sufficient evidence to allow the case to proceed to trial against the mental health professional at the jail because she was aware that the inmate had been suicidal earlier in his confinement and that the MHP on duty before her had ordered restrictions on the inmate as a precaution.  Because she released the inmate into the general population and removed the restrictions, the court held that a jury might reasonably find that she was “deliberately indifferent” to the risk.

The court also upheld a summary judgment dismissing §1983 claims against the County for violation of the inmate’s civil rights.  §1983 liability can be based on one of three theories: (1) a local government is liable “when implementation of it official policies or established customs inflicts the constitutional injury,” (2) a local government is liable for “acts of omission” when such omissions amount to the local government’s policy; and (3) a local government is liable when the individual who committed the constitutional injury was an official with final policy-making authority or such an official ratified a subordinate’s unconstitutional decision and the basis for it.  The court held that while the actions of the corrections officers and mental health professional may have been deficient here, there was no evidence that the actions were part of any official policy or that any policy-maker had ratified them.

Open Public Meetings Act in the News

Posted January 14, 2010 by Angela Belbeck
Categories: Open Public Meetings Act

On January 13 a Pierce County judge ruled that the Tacoma City Council may have violated the executive session provisions of the Open Public Meetings Act (RCW 42.30.110).  Earlier in the month the City Council held an executive session to consider the qualifications of finalists for two vacant council seats.  After the executive session, the Deputy Mayor made eight consecutive motions, each receiving a second by the same councilmember, to move eight candidates forward in the process.  Each motion was unanimously approved without discussion.  The City Council was to further consider the candidates the morning of January 14.

The way the votes took place raised concerns about what may have occurred during the executive session.  The News Tribune brought an action to enjoin the City Council from holding its meeting on the 14th.  The judge allowed the City Council to hold its meeting in executive session, but required that any executive sessions relating to the appointment process for the vacant seats be recorded.

To view the News Tribune article, click here.

Verizon Issues Letters Requesting Tax Refund

Posted January 14, 2010 by OMWHealthLaw
Categories: Telecommunications

Numerous cities in Washington have received a letter from Verizon requesting a refund of the city utility taxes paid by Verizon Northwest Inc. on its sales of digital subscriber line (“DSL”) services.  The letter states that cities are not entitled to tax these services. 

Ogden Murphy Wallace is putting together a team to analyze the claim, research defenses and establish a series of options for our clients to consider.  In addition, this working group will be able to coordinate any group defense should Verizon file suit. If you received this letter [Redacted Verizon Claim] and are interested in finding out how your city can be involved and the process please contact Elana Zana or Wayne Tanaka.

Tasing and Excessive Force

Posted January 5, 2010 by Kristin Eick
Categories: 9th Circuit Opinion

The Ninth Circuit issued its first opinion, Bryan v. McPherson, regarding the use of a taser and excessive force.  Taking into account the physical pain and risk of additional injury due to the paralyzing effect of the shock, the court concluded that the taser is an intermediate level of force for purposes of excessive force analysis.  Accordingly, a taser may only be used when a strong government interest compels employment of such force.  Generally, the government’s interest in the use of force is evaluated according to three factors: (1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or others; and (3) whether he is actively resisting arrest or attempting to flee.  The court acknowledged that there is a continuum of resistance, ranging from passive resistance to physical assault.  The use of a taser should be reserved for those instances where a suspect is closer to active resistance than passive resistance.  Please contact your city attorney should you need assistance in reviewing your taser policy in light of this case.

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