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Is it sufficient to announce prior to an executive session that the board of commissioners is meeting to discuss personnel matters without being more specific about the type of personnel matter being discussed?

 

 

It is not sufficient to announce before an executive session that the board is to discuss personnel matters, because only certain personnel matters may be discussed in executive session. The board may meet in executive session to discuss a complaint or charge brought against a public officer or employee, to evaluate the qualifications of an applicant for public employment, to review the performance of a public employee, or to evaluate the qualifications of a candidate for appointment to elective office. RCW 42.30.110(1)(f), (g), (h). Other personnel matters are not proper subjects for an executive session. The announcement of the executive session should be specific enough to fall under one of those permissible subjects for an executive session discussion. But, it is not necessary to identify the particular employee or officer who will be the subject of the discussion.

By means of further explanation to avoid confusion on this issue, note that the provisions that allow the governing body to conduct an executive session to discuss the personnel matters above described are distinct from the provision that allows a public hospital district board of commissioners to conduct an executive session to discuss the status of the clinical or staff privileges of a physician or other health care provider, and distinct from another provision that allows the commissioners to conduct an executive session to review the report or activities of a quality improvement committee, which are addressed under RCW 70.44.062.

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Can the spouse of an elected hospital commissioner be employed by the hospital?  

 

 

The spouse of a public hospital district (PHD) commissioner can by contract be in a position of employment with the same PHD under certain circumstances.

The general rules are that a PHD commissioner is prohibited from entering into a contract that would financially benefit that commissioner, and the community property interest of one spouse in the earnings of the other is regarded as a beneficial interest for purposes of chapter 42.23 RCW. Absent an exception, RCW 42.23.030 generally prohibits a municipal officer acting in his/her official capacity from entering into a contract employing his/her spouse.

Here, there are five exceptions that could possibly apply. The first is a general exception applicable to all PHDs related to community property interests. As above noted, for purposes of chapter 42.23 RCW, the community property interest of one spouse in the earnings of the other is regarded as a beneficial (financial) interest. The potential conflict can be avoided, however, if the subject commissioner and his/her spouse were to enter into a separate property agreement through which one spouse would have no interest in the compensation paid to the other spouse. Such a separate agreement would negate the general community property rules giving one spouse a legal interest in the earnings of the other spouse.

The second exception is also a general exception that allows a PHD commission to enter into a contract – including an employment contract with a spouse of a commissioner – if the total amount of the contract does not exceed $1,500 in any calendar month. See RCW 42.23.030(6) (a).

In situations in which this exception applies, if you are the commissioner whose spouse would be contracting with the PHD through an employment contract, you cannot vote on the contract, you must disclose your contract interest to your colleagues on the PHD commission, and the interest must be noted in the commission minutes or similar records "before the formation of the contract." See RCW 42.23.030 (last paragraph). Also, the PHD is required to maintain a list of all contracts that are awarded under RCW 42.23.030(6), and the list must be made available for public inspection and copying. See RCW 42.23.030(6)(e).

The third exception only applies to a rural public hospital district, which is defined by RCW 70.44.460 as a PHD whose geographic boundaries do not include a city with a population greater than 30,000. There is a general exception under RCW 42.23.030(6)(c) that applies to contracts entered into by a rural PHD where the contract does not exceed a specific dollar amount. This exception applies to most types of contracts, including employment contracts, although the exception would not apply to a contract for legal services.

RCW 42.23.030(6)(c) has two parts. The first allows a rural PHD commission to enter into a contract – including an employment contract with a spouse of a commissioner – if the total amount of the contract does not exceed $24,000 in any calen dar year. The second part requires the rural PHD commission, at the beginning of each calendar year, to increase the $24,000 limitation to account for inflation. This provision, RCW 42.23.030(6)(c)(ii), is rather detailed and states:

At the beginning of each calendar year, beginning with the 2006 calendar year, the legislative authority of the rural public hospital district shall increase the calendar year limitation described in this subsection (6)(c) by an amount equal to the dollar amount for the previous calendar year multiplied by the change in the consumer price index as of the close of the twelve-month period ending December 31st of that previous calendar year. If the new dollar amount established under this subsection is not a multiple of ten dollars, the increase shall be rounded to the next lowest multiple of ten dollars. As used in this subsection, "consumer price index" means the consumer price index compiled by the bureau of labor statistics, United States department of labor for the state of Washington. If the bureau of labor statistics develops more than one consumer price index for areas within the state, the index covering the greatest number of people, covering areas exclusively within the boundaries of the state, and including all items shall be used.

As with the second exception, in situations in which this exception for rural PHDs applies, if you are the commissioner whose spouse would be contracting with the PHD through an employment contract, you cannot vote on the contract, you must disclose your contract interest to your colleagues on the PHD commission, the interest must be noted in the commission minutes or similar records "before the formation of the contract," the PHD must maintain a list of all contracts awarded under RCW 42.23.030(6), and the list must be made available for public inspection and copying.

The fourth exception is one that could apply in situations involving rural PHDs for contracts above the $24,000 annual threshold above described, as well as for non-rural PHDs regardless of the dollar amount. This exception applies to employment contracts between a PHD and the spouse of a commissioner of the same PHD. Under RCW 42.23.030(12), a PHD commission can authorize, approve, or ratify any employment contract with the spouse of a PHD commissioner if four conditions are met:

  • The spouse was employed by the PHD before the date the commissioner was initially elected;
  • The terms of the contract are commensurate with the pay plan or collective bargaining agreement operating in the district for similar employees;
  • The interest of the commissioner is disclosed to the board of commissioners and noted in the official minutes or similar records of the PHD prior to the letting or continuation of the contract; and
  • The commissioner does not vote on the authorization, approval, or ratification of the contract or any conditions in the contract.

The fifth, and seemingly unlikely situation here, is a general exception under RCW 42.23.030(5) that allows employment by the PHD of any person for unskilled day labor at wages up to a certain dollar amount. This exception would apply regardless of whether the PHD is rural or non-rural. The exception would apply if the PHD is contracting with a commissioner ’s spouse for unskilled day labor at wages not exceeding $200 in any calendar month. Similar to other exceptions above described, if you are the commissioner whose spouse would be contracting with the PHD through an employment contract for unskilled day labor, you cannot vote on the contract, you must disclose your contract interest to your colleagues on the PHD commission, and the interest must be noted in the commission minutes or similar records "before the formation of the contract." See RCW 42.23.030 (last paragraph).

In sum, it is possible for the spouse of a PHD commissioner to be employed through an employment contract with the same PHD that his/her spouse serves as commissioner, but only if the contract meets an exception as above described. If a rural PHD is at issue, the exceptions are broader than is the case for non-rural PHDs.

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Is it permissible for a public hospital district superintendent to be superintendent for more than one public hospital district simultaneously?

 

 

Although definitive legal authority was not found on this issue, it appears that the positions would likely not be regarded as incompatible under the doctrine of incompatible offices because generally it is the district board of commissioners, not the superintendent, which legislates, sets policy, and enters into contracts for the district, presuming the board has not delegated authority to the superintendent. This general rule, however, would require closer scrutiny if there has been a delegation of authority from the board to the superintendent. If, for example, the board has delegated to the superintendent authority to enter into contracts, incompatibility issues would arise if a superintendent simultaneously possessed such contract authority for two districts regarding the same contract.

Similarly, it appears there would not be an issue under chapter 42.23 RCW regarding contractual contract of interest, unless the superintendent had a beneficial (i.e., financial) contract interest and the contract at issue was "made by, through or under the supervision of such officer, in whole or in part." See RCW 42.23.030. If the superintendent did not have a beneficial interest in the contract or the contract, in whole or in part, was not made by, through, or under the superintendent's supervision, chapter 42.23 RCW would not be implicated.

In sum, any public hospital district contemplating having its superintendent also simultaneously be superintendent of another public hospital district should consider a range of issues that could arise. For example, there could be situations in which the districts have different or adverse interests on a particular issue, which could make it difficult for a superintendent to be the point person for such districts at the same time. As such, we strongly recommend that any superintendent facing this issue consult with legal counsel for the district before proceeding.

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If a public hospital district contracts with an officer or employee on an interim basis (e.g., interim CEO, CFO, or otherwise) and would like to offer that interim officer/employee a permanent position, is there a state law requirement that the position be posted internally or externally or can the district go ahead with the hire?

 

 

There is no requirement in state law that the position be posted either internally or externally before a hire is made. State law does not require that a particular procedure be followed regarding posting for such hires, although if the public hospital district has adopted its own procedures regarding such matters, the procedures are to be followed.

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If a requestor of public records asks that paper documents be scanned and made into PDF files so they can be emailed to the requestor, must a public hospital district do this? If so, what can the public hospital district charge for this?

 

 

In our opinion, if a public hospital district has the technological capability (i.e., if it has a scanner), it should comply with this request for conversion of paper documents into PDF files. This conclusion is supported by the Public Records Act Model Rules, specifically WAC 44-14-05002(2)(c)(i), dealing with "reasonably locatable" and "reasonably translatable" electronic records:

Agency has paper-only records. When an agency only has a paper copy of a record, an example of a "reasonably translatable" copy would be scanning the record into an Adobe Acrobat PDF file and providing it to the requestor. The agency could recover its actual cost for scanning. See WAC 44-14-07003. Providing a PDF copy of the record is analogous to making a paper copy. However, if the agency lacked a scanner (such as a small unit of local government), the record would not be "reasonably translatable" with the agency's own resources. In such a case, the agency could provide a paper copy to the requestor.

As to what the public hospital district may charge for scanning, WAC 44-14-07003 provides:

Charges for electronic records. Providing copies of electronic records usually costs the agency and requestor less than making paper copies. Agencies are strongly encouraged to provide copies of electronic records in an electronic format. See RCW 43.105.250 (encouraging state and local agencies to make "public records widely available electronically to the public."). As with charges for paper copies, "actual cost" is the primary factor for charging for electronic records. In many cases, the "actual cost" of providing an existing electronic record is de minimis. For example, a requestor requests an agency to e-mail an existing Excel spreadsheet. The agency should not charge for the de minimis cost of electronically copying and e-mailing the existing spreadsheet. The agency cannot attempt to charge a per-page amount for a paper copy when it has an electronic copy that can be easily provided at nearly no cost. However, if the agency has a paper-only copy of a record and the requestor requests an Adobe Acrobat PDF copy, the agency incurs an actual cost in scanning the record (if the agency has a scanner at its offices). Therefore, an agency can establish a scanning fee for records it scans. Agencies are encouraged to compare their scanning and other copying charges to the rates of outside vendors. See WAC 44-14-07001.

So, a public hospital district, if it has a scanner, should adopt a scanning fee based on the actual costs incurred in scanning documents.