For most voters across the nation today is Election Day. In Washington State, however, today marks the beginning of election week(s) and the possibility for some close races, election month.
In most states mail-in ballots must either be received by Election Day or must be dropped off before the polls close. Washington, however, only requires that a ballot be postmarked by Election Day. This policy unnecessarily complicates the tabulation of votes and can leave the results of close races a mystery for weeks.
With the state's ongoing move to close all poll locations, it is time to require all ballots be received on Election Day. This is exactly what Arizona, California, Colorado, Florida, Georgia, Hawaii, Idaho, Kansas, Maine, Montana, Nebraska, Nevada, New Jersey, New Mexico, Oklahoma, Oregon, South Dakota, Vermont, Wisconsin, and Wyoming require. North Carolina goes a step further requiring absentee ballots to be returned by 5 p.m. the day before the election.
Secretary of State Sam Reed supports requiring mail in ballots to be turned in by Election Day. Speaking on his behalf, Elections Director Nick Handy told the Associated Press last year “We believe it builds greater trust and confidence in the system.”
Despite having the Secretary of State’s support, bills introduced in the past to make this change have died. This year the Secretary of State's request bills (SB 5631 and HB 1623) were not acted on by the Legislature. Here is the bill summary for HB 1623:
"Absentee ballots must be received by the county auditor by 8:00 p.m. on the day of the primary or election in order to be valid. For out-of-state voters, overseas voters and service voters, the date on the return envelope to which the voter attested must be no later than the day of the primary or election in order for the ballot to be valid.
The tabulation of absentee ballots may commence at 8:00 a.m. on the Monday immediately before the day of the primary or election. The tabulation results must be held in secrecy until after 8:00 p.m. on the day of the primary or election."
This election reform should be considered again next year.
The State Auditor's Office (SAO) acts as the eyes of citizens to help ensure state and local governments are operating in an accountable, transparent and effective manner. To help lead by example, staff at SAO met last week to focus on strategic planning and performance measures planning session for the agency.
I had the opportunity to sit in on the sessions and was very impressed with the direction SAO is heading.
Earlier this year the Office of Financial Management (OFM) issued an assessment of the performance measures SAO was using for its activities. OFM said:
With two possible exceptions, the current performance measures in the Performance Measure Tracking System (PMT) should be replaced with outcome/result measures that are more relevant to a budget/policy development audience. In particular, survey results and the cost of performing the audits in relation to the size of the audited entity, are better as internal performance management perspectives. This assessment offers suggestions about the types of measurement topics that would tell a more complete and compelling performance story.
A performance measure is a quantifiable expression of the amount, cost, or result of activities that indicate how well, and at what level, services are provided.
Performance measures provide a snapshot of current performance capabilities and track whether actual performance is getting better, staying the same, or getting worse over time.
What isn’t a performance measure?
Statements of what you intend to do or how you intend to do it. (Goals, objectives, and strategies)
Performance questions that can be answered with a “yes” or “no”
A timeline of when something will be accomplished
The responses from a survey
What are the Attributes of Good Performance Measures?
Relevance - Useful to an external audience of stakeholders to assess the level of accomplishment
Understandability - Clear, concise, and easy for a non-expert to understand
Comparability - Do the data, targets, and footnotes provide the reader with enough context to tell whether performance is getting better, worse, or staying the same?
Timeliness - Is the data current and reported frequently enough to be of value in assessing accountability and making decisions?
Consistency - Is the data collection method standardized and is the operational definition for data calculations adhered to?
Reliability - Is the information verifiable, free from bias, and a faithful representation of what it purports to represent?
Performance - Is actual performance in reference to the stated targets getting better, worse, or staying the same over time?
All agencies (state and local) should undergo the same type of self-reflection as SAO to help improve their performance measures. Doing so will allow elected officials to have access to meaningful performance data to help guide budget decisions.
The Open Government Task Force
created by State Auditor Brian Sonntag and Attorney General Rob McKenna
will have its final meeting on November 2 to vote on recommendations to
improve enforcement of the state's open government laws. Currently the
only option available to citizens is to file a lawsuit if they disagree
with an agency's opinion on whether a record should be disclosed.
State Auditor Brian Sonntag noted at the October 5 Task Force meeting
that there has to be a better way for citizens to access government records
without having to resort to lawsuits. Attorney General Rob McKenna
agreed highlighting the fact that every other area of law has an
administrative mechanism for addressing concerns. The reason is
administrative mechanisms are faster and more cost effective than
relying solely on court relief. Unfortunately, Washington lacks this
type of recourse for enforcement of the state’s open government laws.
1) The Public Records Act and Open Public Meetings Act provide rights to the public for access to public records and meetings. The purpose of these laws is to allow the public access to public records and meetings. The courts are not always the best method for enforcing these rights and may be extremely expensive and slow. The added costs and uncertain liability of agencies subject to litigation are a growing concern.
2) There is a critical need for an independent administrative oversight agency to enforce the Public Records Act and Open Public Meetings Act with the purpose of providing an inexpensive, expedited, and clear process for resolving disputes.
3) The independent oversight agency should have authority to adopt rules pursuant to the Administrative Procedures Act to provide clear guidelines for an appeal process, and to issue advisory opinions interpreting the laws to provide clarity on agency duties. The oversight agency should make this information available on its website with other relevant information. The oversight agency should submit an annual report to the legislature on its activities, and recommend legislative reform.
4) Training should be mandatory for designated agency officials for the Public Records Act and Open Public Meetings Act. It would greatly reduce the concern over litigation. The oversight agency should provide periodic training, and make training materials available free on its website.
5) The independent oversight agency may be governed either by:
a) A single independent director appointed by the Governor who hires appeals officers to manage and decide appeals, and has a term set by law and may only be removed for cause, or
b) It may be governed by a commission.
6) The process for utilizing an appeal to an oversight agency should be expedited. The oversight agency should have a short period set by law to issue a final ruling on any docketed appeal, and a process for requesting immediate rulings on simple issues in less than the period set by law. The oversight agency should have discretion on granting any request for a hearing, and/or conduct a confidential in camera review.
7) The existing legal right to initiating an action under the Public Records Act in superior court applies to any person having been denied an opportunity to inspect or copy a public record, and also for an agency or its representative, or a person who is named in the record or to whom the record specifically pertains. RCW 42.56.540 – 550. That existing legal right should be extended for any appeal to an oversight agency by a person denied a record, an agency or its representative, or a person who is named in the record or to whom the record specifically pertains.
8) The costs for using the appeals process of the oversight agency should be minimal or none for filing an appeal, and there should be no award of attorney fees, costs, or penalties to a prevailing party at the administrative level.
9) A ruling by the oversight agency is binding on the parties, enforceable in court, and subject to an appeal and de novo review by a court of general jurisdiction. The oversight agency should not be named as a defendant in any appeal to superior court.
10) Use of the administrative appeals process of the oversight agency should be encouraged to resolve disputes. There may still be a need in emergencies or for other fundamentally apparent reasons to initiate a lawsuit in superior court rather than filing an administrative appeal. A requirement to exhaust an administrative appeal with an oversight agency prior to appealing in superior court would end an existing legal right of the people created by initiative to bring an action directly before an independently elected judge. Therefore a process that allows the option of filing a direct action in superior court should be retained.
11) Adequate funding is vital to allow any oversight agency to successfully perform its work. Funding should be from a dedicated source.
While an administrative appeals option should be pursued, WPC believes it is very important that the right of citizens to go directly to court for relief not be infringed. Here is the video of our comments at the October 5 meeting:
The Ninth Circuit Federal Appeals Court has ruled for Secretary of State Sam Reed in the dispute whether or not to release the R-71 petitions in response to a public records request. Here is the Court's order:
The court, after consideration of the record and briefs of the parties, and oral argument, has determined that the district court’s Order Granting Plaintiffs’ Motion for Preliminary Injunction (the “Preliminary Injunction Order”), filed September 10, 2009, relies on an incorrect legal standard and, therefore, must be reversed.
It is therefore ordered:
1. Appellants’ motion for a stay pending appeal is granted and the Preliminary Injunction Order is hereby stayed, effective immediately, pending final resolution of these appeals.
2. An opinion setting forth the reasons for the court’s reversal of the Preliminary Injunction Order shall be issued expeditiously and in due course.
In a 7-2 ruling this morning (includes one concurring opinion), the state Supreme Court declared that judicial records are not subject to disclosure under the public records act. Writing for the majority, Justice Susan Owens said:
This court previously held that the PRA does not apply to the judiciary and the legislature acquiesced to that decision by not modifying the PRA. We see no reason to violate the doctrine of stare decisis here. The trial court correctly held that the PRA does not require the City to release the judicial records requested by Koenig, and we affirm.
Chief Justice Gerry Alexander and Justice Debra Stephens dissented saying:
In the end, I believe we do a disservice to interpret the PRA, a broad mandate for open government, to exempt entirely the judicial branch of government. Nast is not stare decisis on this question, and courts plainly meet the statutory definition of “agency” in RCW 42.56.010. It seems to me the PRA speaks for itself:
The people of this state do not yield their sovereignty to the agencies that serve them. 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. The people insist on remaining informed so that they may maintain control over the instruments that they have created. This chapter shall be liberally construed and its exemptions narrowly construed to promote this public policy and to assure that the public interest will be fully protected. In the event of conflict between the provisions of this chapter and any other act, the provisions of this chapter shall govern.
Based on today's decision it is now up to the Legislature to overturn this court carved exemption from open government and amend the law to explicitly say the third branch of government (judiciary) is subject to the same disclosure requirements as the other two (executive and legislative).
The state Sunshine Committee this morning unanimously adopted a recommendation that any new exemptions from public disclosure undergo a sunset review. Here is the recommendation as adopted by the Committee:
The Committee makes the following recommendations for new legislation:
1. The Legislature incorporate all existing and further exemptions into the Public Records Act by express reference.
2. The Legislature limit all future exemptions to a term of five years and be that such exemptions be examined by JLARC (Joint Legislative Audit Review Committee), the Sunshine Committee, or other competent body, a year prior to their expiration on a case by case basis to determine if they merit reauthorization or should be eliminated or revised.
Be it Resolved that it is the sense of this committee that all
exemptions to the Public Records Act and any statutory basis to
withhold information or records be eliminated after two years unless
specifically reauthorized by the Legislature with the exception of
those ten included in the original legislation; and that the
Legislature examine all of the eliminated exemptions individually, and
Further, that all future exemptions be limited to a term of two years
and be examined by the Legislature upon their expiration on a case by
case basis to determine if they merit reauthorization or should be
eliminated or revised.
The Committee also discussed the other recommendations from its draft report to the Legislature. Those recommendations concern:
The Open Government Task Force created by State Auditor Brian Sonntag and Attorney General Rob McKenna met this morning to discuss alternative ways to enforce the state's open government laws. Currently the only option available to citizens is to file a lawsuit if they disagree with an agency's opinion on whether a record should be disclosed.
Opening the meeting State Auditor Brian Sonntag noted there has to be a better way for citizens to access government records without having to resort to lawsuits. Attorney General Rob McKenna agreed highlighting the fact that every other area of law has an administrative mechanism for addressing concerns. The reason is administrative mechanisms are faster and more cost effective than relying solely on court relief. Unfortunately, Washington lacks this type of recourse for enforcement of the state’s open government laws.
The Task Force's heavy hitters (including House Majority Leader Lynn Kessler, Rep. Chris Hurst, Rep. Joel Kretz, and Sen. Bob Morton) heard a presentation from Terry Mutchler, Executive Director of Pennsylvania's Office of Open Records. Mutchler described how Pennsylvania's administrative process works for citizens and agencies to resolve public records dispute.
The administrative review processes in other states was also discussed at the meeting. Working with the Attorney General's Office I reviewed the public records laws in the states with administrative options for citizens and created this handout for the Task Force.
Here is a sampling of how enforcement of open government laws works in those states:
Kentucky - Attorney General review of records dispute and subsequent opinion has the full force and effect of law.
Nebraska - If an agency ignores the opinion of the Attorney General that a record should be disclosed, the Attorney General must sue the agency on behalf of the citizen if requested.
New Jersey - Government Records Council offers mediation services to resolve records disputes.
North Dakota - If an agency ignores the opinion of the Attorney General that a record should be disclosed, the agency or public official is personally liable.
Next up for the Open Government Task Force is working on a draft report laying out its recommendations for the Legislature to consider next session.
The Open Government Task Force created by State Auditor Brian Sonntag and Attorney General Rob McKenna will hold the first of two meetings on October 5. According to the Task Force's website:
The purpose of the Open Government Task Force is to study and make recommendations on the creation of an administrative board to rule on complaints of violations regarding the Public Records Act (PRA) and the Open Public Meetings Act (OPMA).
The Attorney General's Office and the Auditor's Office created this Task Force to address growing concerns among governments and the public. State agencies and local governments face a logjam of citizen complaints, costly litigation over the PRA and the OPMA, and uncertainty regarding potential liability that may require payment of attorneys’ fees, costs, and daily penalties. Citizens who are denied access to public records and public meetings have no choice other than to go to court, and lawsuits may take years to resolve and are costly. Going to court to enforce legal rights to access public records and public meetings is simply not an option for many citizens.
An efficient and inexpensive solution is needed to resolve complaints and provide greater access to public records and public meetings while reducing costs to governmental agencies and the public. Many states provide an independent administrative review process to resolve complaints without litigation. These states use administrative boards to offer services including mediation, dispute resolution, non-binding legal interpretations, investigation of potential violations, issuing final appealable rulings, offerings of legislative reform, and training public officials about their responsibilities under the law.
Here is the agenda and handouts for Monday's meeting. The meeting is open to the public and will be held from 9 am to 1 pm in the Senate Rules Room.
Earlier this year Washington Congressman Brian Baird (D) introduced a
resolution calling for a 72-hour review period on
legislation before a vote could be taken. Baird's House Resolution 554 is co-sponsored by Rep. John
Culberson of Texas (R). Since House leadership has not scheduled the bill for a vote, Baird has joined with other Representatives to try to force floor action on the transparency proposal. According to The Hill:
"Democratic Rep. Brian Baird (Wash) has signed on to a discharge petition intended to force a floor vote on transparency legislation backed by Republicans.
If the petition wins 218 signatures, it would pave the way for a vote on legislation that would change House rules to require that bills are posted online for 72 hours before the House votes on them.
It is rare for a lawmaker to sign on to a discharge petition intended to force the leaders of his party to hold a floor vote. It is also considered to be a slap in the face of leaders.
Rep. Greg Walden (R-Ore.) on Wednesday announced that Baird had signed on to the petition in comments on the House floor.
Baird was a cosponsor of the transparency legislation with Rep. John Culberson (R-Texas). The two introduced their bill in June, arguing it was intended to ensure that members have enough time to read through complicated bills before they vote.
The bill has 98 cosponsors, including many Democrats."
This type of transparency reform is one of WPC priorities for Washington state. From our Policy Guide:
To
facilitate public involvement, the legislature should adopt a 72-hour
timeout period in the legislative process once a budget, tax or
spending bill is introduced or amended. This would allow lawmakers and
the public a three-day period to calmly consider the two-year budget,
new taxes or new spending before legislative hearings or final voting
occurs.
A bill was introduced in Olympia this past session by Rep. Alexander (HB 1654) to create a five day review period for appropriation bills. Although a work session was held, no public hearing or vote occurred.
In other federal transparency news, the Senate Finance Committee rejected an amendment to post legislative language and cost estimates for the health care reform bill on line for 72-hours before the committee votes on the bill. As reported by Politico:
"The Finance Committee voted against an amendment that would have required legislative language and a cost estimate be posted on the Internet three-day before the committee votes on the bill. The change, offered by Republican Sen. Jim Bunning, failed 11-12, with Democratic Sen. Blanche Lincoln crossing party lines and voting with Republicans.
The committee did pass a Baucus amendment that requires a cost estimate and a plain-English explanation of the bill to be posted online before voting. The amendment passed on a party line vote.
The committee spent more than two hours debating the issue, not a good sign for those who want to make it home for dinner. There are dozens more amendments still to be debated."
Yesterday the state Sunshine Committee voted 8-1 to recommend the Legislature repeal its exemption to the public records act for legislative records. State legislators are currently the only officials in the state with this exemption. The lone no vote was Sen. Adam Kline, Chair of the Senate Judiciary Committee.
In this state, the 2007 Legislature passed a law that shields
journalists from having to reveal their sources in court. Kline was
prime sponsor of that shield-law Senate bill. Representative Lynn
Kessler, another Sunshine Committee member, was prime sponsor of the
identical House version, which became law.
Kline says he asked journalists on the Sunshine Committee “why [a
source's identity] should be confidential to them and not to us.” He
says he didn't get an answer. “ There is no difference,” he says. “They admit it by their silence.”
Kline readily concedes that some communications from constituents are “venal,” but he thinks the public interest in protecting potential whistle blowers outweighs the public interest in exposing people who, say, try to buy votes. Kline reasons that some people who have sensitive information won't come forward if they know their identities can be made public. Is that speculation? Of course, Kline says. But he suggests it is also speculative that the lack of a shield law before 2007 kept sources from communicating with journalists. “I feel that those people [who provide sensitive information to legislators] need to be shielded just as they are when they go to a news reporter,” he says.
The press, however, did answer the Senator's question at the Sunshine Committee hearing yesterday. Here is the exchange between Sen. Kline and Rowland Thompson, Executive Director of Allied Daily Newspapers of Washington:
