WSR 11-24-068

PROPOSED RULES

EASTERN WASHINGTON UNIVERSITY


[ Filed December 6, 2011, 1:14 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 11-21-085.

Title of Rule and Other Identifying Information: Creating chapter 172-137 WAC, Use of university facilities.

Hearing Location(s): Eastern Washington University (EWU), Main Campus, Tawanka Commons, Room 215, Cheney, Washington 99004, on January 27, 2012, at 2:30 p.m.

Date of Intended Adoption: January 27, 2012.

Submit Written Comments to: University Policy Administrator, 214 Showalter Hall, Cheney, WA 99004, e-mail tlutey@ewu.edu, fax (509) 359-7036, by January 25, 2012.

Assistance for Persons with Disabilities: Contact Trent Lutey by January 25, 2012, (509) 359-6322.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: These rules are needed to establish standard requirements and procedures for the use of EWU facilities by persons or organizations, internal or external. These rules also provide for the use of EWU facilities for the exercise of free speech and other first amendment protected activities.

Statutory Authority for Adoption: RCW 28B.35.120(12).

Statute Being Implemented: Not applicable.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: EWU, governmental.

Name of Agency Personnel Responsible for Drafting: Laurie Connelly, 214 Showalter, Cheney, WA 99004, (509) 359-2371; Implementation and Enforcement: Mary Voves, 310 Showalter, Cheney, WA 99004, (509) 359-4210.

No small business economic impact statement has been prepared under chapter 19.85 RCW. WAC revision does not impose a disproportionate impact on small businesses.

A cost-benefit analysis is not required under RCW 34.05.328. Chapter 172-137 WAC is not considered a significant legislative rule by EWU.

December 6, 2011

Trent Lutey

University Policy Administrator

OTS-4477.1

Chapter 172-137 WAC

USE OF UNIVERSITY FACILITIES


NEW SECTION
WAC 172-137-010   Purpose.   Eastern Washington University is an educational institution established and maintained by the citizens of Washington state in order to carry out the mission of teaching, research and public service. University facilities exist for the primary purpose of supporting that mission and related educational activities.

The university may also permit the use of facilities for other purposes so long as the use does not interfere with university activities. In such cases, the university may impose reasonable conditions on the time, place and manner in which facilities are used.

This chapter establishes standards and procedures for use of university facilities by individuals and entities other than the university itself, including university employees, students, and registered student organizations, as well as individuals and groups that are not related to or affiliated with the university.

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NEW SECTION
WAC 172-137-020   Definitions.   (1) "Facility" or "facilities" includes all buildings and grounds owned or controlled by the university and the streets, sidewalks, malls, parking lots, and roadways within the boundaries of property owned or controlled by the university. Specific rules also apply to parking lots, recreational equipment, and commercial activities (chapters 172-116, 172-118, and 172-139 WAC).

(2) "First amendment activities" include, but are not necessarily limited to, informational picketing, petition circulation, the distribution of information leaflets or pamphlets, speechmaking, demonstrations, rallies, appearances of speakers in outdoor areas, protests, meetings to display group feelings or sentiments, and/or other types of constitutionally protected assemblies to share information, perspectives, or viewpoints.

(3) "Nonuniversity groups" are groups that are neither a university group nor a university affiliate. Nonuniversity groups include employee union organizations, businesses, nonprofit organizations, and individuals who are not currently enrolled students, current university employees, or employees of a university affiliate.

(4) "University affiliates" are external entities that have formal relationships with the university, including: The EWU Foundation, the EWU Alumni Association, and the office of the attorney general. University affiliates also includes the officers, agents, and employees of such an entity.

(5) "University groups" include: The ASEWU, student groups that are officially recognized by the ASEWU, the faculty organization, the academic senate, and any other group that is formally recognized by the university as a group that is directly associated with and a part of the university organization. University group also includes individual members of these groups when acting on behalf of the group, as well as currently enrolled students and current employees.

(6) "Use of facilities" includes the holding of any event or forum, the posting of signs, all forms of advertising, commercial solicitation or the conduct of other commercial activities, the distribution of pamphlets or similar written materials, and the charitable solicitation or the conduct of other charitable activities on or using university facilities.

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NEW SECTION
WAC 172-137-030   University priority.   First priority for the use of campus facilities shall be given to regularly scheduled university activities. Additionally, use of university facilities may be subject to reasonable time, place, and manner restrictions that take into account, among other considerations, the general facilities policy; the direct and indirect costs to the institution; environmental, health and safety concerns; wear and tear on the facilities; appropriateness of the event to the specific facility; and the impact of the event on the campus community, surrounding neighborhoods, and the general public. In reviewing conflicting requests to use university facilities, primary consideration is given to activities specifically related to the university's mission.

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NEW SECTION
WAC 172-137-035   Delegated responsibility.   The board of trustees has delegated to the president of the university the authority to regulate the use of university facilities. Under this authority, the president has delegated to the vice-president for business and finance (VP-BF) the authority to review the use of university facilities; to establish within the framework of this policy guidelines and procedures governing the use; to approve or disapprove requested uses; and to establish policies regarding fees and rental schedules where appropriate.

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NEW SECTION
WAC 172-137-040   Conditions of use.   (1) Restriction of access. The president of Eastern Washington University may restrict access to university facilities and may establish rules of conduct for persons while on university facilities, as prescribed under WAC 172-122-210.

(2) No disruption to normal activities. University facilities may not be used in ways which obstruct or disrupt university operations, the freedom of movement, or any other lawful activities. No activity may obstruct entrances, exits, staircases, doorways, hallways, or the safe and efficient flow of people and vehicles.

(3) Sound amplification. The use of electronic sound amplification is permitted in facilities designated by the VP-BF or designee. Use of audio amplifying equipment is permitted only in locations and at times that will not interfere with the normal conduct of university affairs. Sound amplification equipment is not permitted within the university's public forum areas. Use of sound amplification equipment must comply with all local ordinances.

(4) Overnight use.

(a) No person may use university facilities to camp, except as provided in subsection (b) of this section. "Camp" means to remain overnight, to erect a tent or other shelter, or to use sleeping equipment, a vehicle, or a trailer camper, for the purpose of or in such ways as will permit remaining overnight. Violators are subject to arrest and criminal prosecution under applicable state, county and city laws.

(b) Exceptions:

(i) The use and occupancy of university housing in accordance with housing rules;

(ii) The use of facilities by a university employee or agent who remains overnight to fulfill the responsibilities of his or her position;

(iii) The use of facilities by a university student who remains overnight to fulfill the responsibilities of his or her course of study;

(iv) The use of facilities where overnight stays are specifically permitted in identified locations for attendees at special events designated by the university, such as during home football games, commencement, and special weekends.

(5) Prohibited users. The university will not make its facilities or services available to organizations which do not assure the university that they will comply with the terms of the Americans with Disabilities Act (ADA, 42 U.S.C. secs. 12132 and 12182) and the Rehabilitation Act of 1973 (RA, 29 U.S.C. 794). Uses must not impose restrictions nor alter facilities in a manner which would violate the ADA or RA.

The university will not make its facilities or services available to organizations which do not assure the university that they do not discriminate against any person because of race, color, religion, national origin, sex, sexual orientation, age, handicap, or status as a Vietnam era or disabled veteran, except where the organizations have been exempted from provisions of applicable state or federal laws or regulations.

(6) Demands on university resources. University facilities may not be used where the use would create undue stress on university resources (e.g., a request for a major event may be denied if another major event is already scheduled for the same time period, because of demands for parking, security coverage, etc.); except that the use of public forum areas for a first amendment activity may not be halted simply because the event may require additional university security or police costs.

(7) Prohibited items and authority to inspect. Within the limits of applicable laws, Eastern Washington University is committed to establishing and maintaining safe conditions for persons attending events in university facilities. Accordingly, some events have restrictions on items that may be brought into the event (i.e., beverage containers, noisemakers). Individuals possessing such items will not be admitted to, or will be removed from, university facilities until the items have been properly removed, discarded, or stored. All persons entering events at university facilities shall be subject to having all containers, bags, backpacks, coolers, or similar items visually inspected. Persons who refuse the visual inspection and refuse to dispose of the item shall be denied entry.

(8) Violations and trespass. Individuals who violate the university's use of facilities rules and approved users who violate university contract terms for use of facilities may be advised of the specific nature of the violation and, if continued, individuals may be requested to leave university property or be refused future use of university facilities.

Under WAC 172-122-200, the university president, or designee, may prohibit access to university facilities, give notice against trespass, and/or order any person or group to leave university facilities.

Failure to comply with a request to leave university property could subject the individuals to arrest and criminal prosecution under the provisions of WAC 172-122-200 and other applicable state, county, and city laws.

(9) Safety and liability.

(a) Users must comply with all applicable university policies, procedures, rules and regulations; local, state and federal laws; and fire, health and safety regulations, to include any special regulations specified for the event by the university and/or government authorities.

(b) Users assume full responsibility for any loss, damage or claims arising out of the use.

(c) University facilities may not be used in ways that create safety hazards or pose unreasonable safety risks to students, employees, or invitees.

(d) University facilities may not be used in any manner that creates a hazard or results in damage to university facilities.

(e) Users shall complete a risk assessment as required or directed by the event planning office.

(f) University facilities may not be used in furtherance of or in connection with illegal activity.

(g) Users are responsible for the appropriate care of facilities being used. Facilities may be inspected by a representative of the university after the event. Reasonable charges may be assessed against the sponsoring organization for the costs of extraordinary cleanup or for the repair of damaged property.

(h) When the event involves physical activity, the serving of alcohol, or otherwise will increase the risk of bodily injury above the level inherent in the facilities to be used, proof of appropriate liability insurance coverage with limits of at least one million dollars per occurrence must be provided to the VP-BF/designee before approval for the requested use will be granted.

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NEW SECTION
WAC 172-137-050   Authorized and prohibited uses.   (1) Public forum/free speech areas. Use of university facilities for first amendment/free speech activities is governed by the rules set forth in WAC 172-137-080.

(2) Private or commercial activities.

(a) University facilities may not be used for private or commercial gain, including: Commercial advertising; solicitation and merchandising of any food, goods, wares, service, or merchandise of any nature whatsoever; or any other form of sales or promotional activity; except as allowed under chapter 172-139 WAC or in the following cases:

(i) By special permission granted by the university president, or designee, if an agreement, lease, or other formal arrangement is entered into between the university and the person, corporation, or other entity desiring to engage in commercial activity; or

(ii) To the extent it represents the regular advertising, promotional, or sponsorship activities carried on, by, or in any university media, The Easterner, or at university events;

(b) University facilities may not be used by faculty or staff in connection with compensated outside service, except that faculty or staff may use university facilities that are generally available to the public on the same basis, including payment of the same fees, as may other private citizens.

(c) Commercial advertising and/or solicitation which is deceptive or concerns an illegal product or service is prohibited on university facilities.

(3) Political activities. University facilities may be used for political activities when such use complies with chapter 42.52 RCW, Ethics in public service. Permitted activities may include:

(a) University departments, student government organizations, or registered student organizations may sponsor candidate forums as well as issue forums regarding ballot propositions;

(b) Candidates for office and proponents or opponents of ballot propositions may rent university facilities on a short-term basis for campaign purposes to the same extent and on the same basis as may other individuals or groups;

(c) Candidates for office and proponents or opponents of ballot propositions may use public forum areas, to the same extent and on the same basis as may other individuals or groups; and

(d) A registered student organization may invite a candidate or another political speaker to one of the meetings of its membership on university property, if it has complied with the scheduling procedures of WAC 172-137-070.

(e) Restrictions:

(i) When an event under this section involves the rental of a university facility, the full rental cost of the facility must be paid and state funds may not be used to pay rental costs or any other costs associated with the event.

(ii) University facilities may not be used to establish or maintain offices or headquarters for political candidates or partisan political causes.

(iii) All candidates who have filed for office for a given position, regardless of party affiliation, must be given equal access to the use of facilities within a reasonable time.

(iv) No person shall solicit contributions on university property for political uses, except in instances where this limitation conflicts with applicable federal law regarding interference with the mails.

(v) Use of university facilities for political activities, as described in this section, must have prior approval of the vice-president for business and finance or designee.


EXCEPTION: Use of public forum areas for first amendment activities does not require VP-BF/designee approval but must comply with all other applicable requirements of this chapter.

(4) Charitable organization use. University facilities may be used to benefit a charitable organization when such use complies with chapter 42.52 RCW, Ethics in public service. Examples of permitted use include, but are not limited to, the following:

(a) Charities that are licensed in the state of Washington may use university facilities that are generally available to the public on the same basis, including payment of the same fees, as may private citizens;

(b) Charities that are licensed in the state of Washington may use facilities without charge by special permission granted by the university president, or designee, or the vice-president for business and finance where the university has determined that the charitable activity or use will serve an educational or public service purpose related to the university's mission; and

(c) Student government organizations, registered student organizations, and university units that have followed university policies and procedures to conduct fund-raising activities and have adhered to all scheduling requirements and other university policies.

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NEW SECTION
WAC 172-137-060   Solicitation, visual displays and advertising.   (1) Solicitation, handbills, pamphlets, and similar materials.

(a) Solicitation, or distribution of handbills, pamphlets, and similar materials by anyone, whether a member of the university community or of the general public, is not permitted in those areas of campus to which access by the public is restricted or where the solicitation or distribution would significantly impinge upon the primary business being conducted.

(b) No person shall place in or on any vehicle parked on the university campus, any solicitation devices.

(c) For the purposes of this chapter, the following definition applies: A "solicitation device" is any printed or written matter, sample, or device which:

(i) Advertises for sale any merchandise, product, service, or commodity; or

(ii) Directs attention, either directly or indirectly, to any business or mercantile or commercial establishment, or other activity, for the purpose of promoting an interest in sales or use; or

(iii) Directs attention to or advertises any meeting, performance, exhibition, or event of any kind, for which an admission fee is charged for the purpose of private gain or profit.

(2) Signs, posters, and visual displays. To ensure that goals and objectives relating to the appearance of the campus are maintained, the university regulates the content, location, dimensions, and period of display time of posted materials. Posters must be approved by PUB administration, in accordance with university policy, prior to their placement in any campus location. Specific regulations are available to the public in the PUB administration office.

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NEW SECTION
WAC 172-137-070   Procedures for other than first amendment/free speech activities.   This section prescribes procedures for the use of university facilities, by individuals and entities other than the university itself, for other than first amendment/freedom of expression activities.

(1) Scheduling and reservation practices.

(a) The primary purpose of university facilities is to serve the university's instructional, research, and public service activities. However, designated facilities, when not required for scheduled university use, may be available for rental by the public in accordance with current fee schedules and other relevant terms and conditions.

(b) No university facilities may be used by individuals or groups unless the facilities, including buildings, equipment, and land, have been reserved as required under this section.

(c) The VP-BF/designee may deny a request to use university facilities when it is determined that the use would violate any of the limitations set forth in this chapter or where the requestor is unwilling to comply with university requirements for the use of facilities, as authorized by these rules.

(2) Requests. Requests for use of university facilities must be directed to the event planning office.

(3) Approval authority.

(a) University groups may use university facilities to hold events for faculty, staff, and students without sponsorship by an academic or administrative unit, or approval by the VP-BF/designee, so long as the use complies with this policy and the policies of the specific facilities involved.

(b) University groups may use university facilities to hold events to which the general public is invited when the event is sponsored by an academic or administrative unit and approved by the VP-BF or designee.

(c) All requests for the use of university facilities by university affiliates or nonuniversity groups, whether sponsored or not, must be approved by the VP-BF or designee.

(4) Facility rental/use fees.

(a) The university assesses fees based upon the actual cost, direct and indirect, of using a university facility. Fees for the use of most facilities are set forth on a schedule available on the event planning office web site. The university reserves the right to make changes to fees without prior written notice, except that fee changes do not apply to facility use agreements already approved by the university.

(b) In the event that the fee for the use of a particular facility has not been placed on the schedule, and if the university determines to allow the use of the facility, the university will assess a fee based upon the full cost, direct and indirect, of using the facility.

(c) Student government organizations and registered student organizations may be allowed to use space in many university facilities at no charge or at a reduced rate. The fees charged to student government and registered student organizations for facilities are available through the event planning office.

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NEW SECTION
WAC 172-137-080   Facility use rules for first amendment/free speech activities.   (1) Purpose. Freedom of expression is a highly valued and indispensable quality of university life. The university commitment to this ideal does not, however, grant to individuals or groups an unlimited license to engage in activity which limits, interferes with, or otherwise disrupts the normal activities for and to which the university's buildings, facilities and grounds are dedicated. The purpose of these time, place, and manner regulations is to establish procedures and reasonable controls for the use of the university's public forum areas. It is intended to balance the university's responsibility to fulfill its mission as a state educational institution of Washington with the interests of individuals or groups who are interested in using the campus for purposes of constitutionally protected speech, assembly, or expression.

(2) Policy. Subject to all other applicable regulations and requirements of this chapter, individuals and/or groups may use the university's public forum areas for those activities protected by the first amendment.

(3) Conflict with university events. The university's public forum areas may not be used on the same date as any previously scheduled university event or activity at the site (aside from regularly scheduled classes) where it is reasonably anticipated that more than one hundred people will attend the university event or activity.

(4) Public forum areas. Public forum areas are those areas of each campus that the university has chosen to be open as places for expressive activities protected by the first amendment, subject to reasonable time, place, and manner restrictions.

(a) At the Cheney campus, the designated public forum areas are:

(i) Southeast Mall: Outside the Cheney Normal School Heritage Center (one room schoolhouse), on the west side of the building;

(ii) Northeast PUB: Outside the Pence Union Building, on the northeast side of the building; and

(iii) The public sidewalks adjacent to public roads.

(b) A map, identifying the specific boundaries of the public forum areas, is available in the office of event planning.

(c) At the Riverpoint campus, public forum areas are designated by Washington State University under chapter 504-33 WAC.

(d) At the Bellevue campus, public forum areas are designated and managed by Bellevue College under chapter 132H-142 WAC.

(e) In addition to the public forum areas identified herein, the university president may designate additional areas of the campus as public forums.

(5) Duration of use.

(a) University groups may use public forum areas for not more than eight hours per day and for no more than five days during any three-week period.

(b) University affiliates and nonuniversity groups may use public forum areas for not more than five hours per day and for no more than three days during any three-week period.

(c) These limitations upon the duration of use will be excused, on a day-to-day basis, upon request when there are no competing requests to use the area and when the use will not conflict or interfere with activities scheduled within the immediate vicinity of the public forum area.

(6) Utility connections. The university will not provide utility connections, including power, telephone, and data.

(7) Grant of license. The university president or designee, or any university vice-president or designee may authorize first amendment activities which are reasonably determined not to disrupt university activities, despite a literal violation of this policy statement. Such determinations will be made without consideration of the content or message of the first amendment activities.

(8) Termination of license. The university president or designee, or any university vice-president or designee may, at any time, terminate, cancel or prohibit the use of facilities if the event is disrupting normal university functions. Any of these individuals may refuse to allow a proposed use of facilities if they determine, after reasonable inquiry, that the use or event cannot be conducted without disrupting normal university functions. Such determinations will be made without consideration of the content or message of the first amendment activities.

(9) Procedures - Notice for use of public forum area. Individuals or groups who desire to use a public forum area for those activities protected by the first amendment, must provide notice to the university. Notice shall be provided to the event planning office no later than fourteen calendar days in advance of use of the public forum area. However, events may be permitted with less notice so long as the event does not interfere with any other function. The notice to use a public forum area must contain:

(a) The name, address, and telephone number of the individual, group, entity, or organization sponsoring the event or use (hereinafter "the sponsoring organization"); and

(b) The name, address, and telephone number of a contact person for the sponsoring organization; and

(c) The date, time, and requested location of the event; and

(d) The nature and purpose of the event; and

(e) The estimated number of people expected to participate in the event.

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Washington State Code Reviser's Office