5489-S2 AMH MAYC H2958.1
2SSB 5489 - H AMD TO APP COMM AMD (H-2877.1/19) 747
By Representative Maycumber
On page 8, after line 22, insert the following:
"NEW SECTION.  Sec. 7. A new section is added to chapter 43.10 RCW to read as follows:
(1) The position of environmental justice ombuds is created in the consumer protection division of the office of the attorney general. The ombuds is an advocate for owners of property impacted by restrictions arising from the shoreline management act, chapter 90.58 RCW, the growth management act, chapter 36.70A RCW, local government's comprehensive plans, shoreline master programs, development regulations, or actions implementing the growth management act or shoreline management act, and appellate court decisions interpreting the shoreline management act, growth management act, local governments' comprehensive plans, or development regulations. The ombuds must be a member in good standing of the Washington state bar association.
(2) The attorney general is directed to assemble an advisory panel and obtain the advisory panel's approval prior to hiring a specific person to the position of environmental justice ombuds. The advisory panel must include:
(a) At least two members of the legislature of differing political affiliations that serve on a policy committee with jurisdiction over the office of the attorney general;
(b) A Washington state licensed attorney in private practice with extensive knowledge of land use and constitutional takings jurisprudence who resides east of the crest of the Cascade mountain range; and
(c) A Washington state licensed attorney in private practice with extensive knowledge of land use and constitutional takings jurisprudence who resides west of the crest of the Cascade mountain range.
(3)(a) The environmental justice ombuds must administer the payments from the environmental justice claims account created in section 9 of this act. The money in the account must be used for the purpose of ensuring that the implementation of the growth management act and shoreline management act do not violate constitutional protections and respond to claims arising from court decisions interpreting the growth management act that started as petitions for review before the growth management hearings board and meet the requirements in (b) and (c) of this subsection.
(b) The person requesting the environmental ombuds' review of a claim must:
(i) Pay a review fee of one hundred dollars to be retained by the office of the attorney general. The office of the attorney general may waive the review fee for a person whose income is at or below fifty percent of median income, adjusted for household size, for the county where the property is located;
(ii) Identify the shoreline hearings board or growth management hearings board decision or court case opinion and how it impacts the person's property; and
(iii) Present substantiated claims that satisfy the legal requirements for: Inverse condemnation; deprivation of economically viable use of property; extractions or government requirements that do not meet the requirements of nexus and proportionality; violations of the Fifth Amendment of the United States Constitution; violations of Article I, section 16 of the state Constitution; or claims arising when counties have required property owners to do the county's duty to find legal availability of water by having the property owners establish legal availability of water for a permit exempt well as authorized in RCW 90.44.050.
(c) If the ombuds determines the person's claim satisfies the legal and factual requirements for inverse condemnation, deprivation of economically viable use of property, extractions or government requirements that do not meet the requirements of nexus and proportionality, violations of the Fifth Amendment of the United States Constitution, violations of Article I, section 16 of the state Constitution, or a county has shifted its legal duty onto the property owner seeking to rely on a permit exempt well pursuant to RCW 90.44.050 for a building permit, the ombuds must take one or more of the following actions:
(i) Advocate on the person's behalf to the local government for correction of the violation;
(ii) Participate in court actions seeking relief for the claims;
(iii) Provide the claimant with the ombuds' legal recommendation of the presented claim; or
(iv) Pay amounts from the environmental justice claims account created in section 9 of this act at the discretion of the ombuds in a manner to facilitate the resolution of claims set forth in this subsection. No payment may exceed five thousand dollars and no payment may be made to corporations, companies, businesses, organizations, associations, government agencies, or any legal entity that is not a natural person.
(d) The attorney general must create a form for claimants to use to seek the environmental justice ombuds' review. The form must identify the current legal requirements that would be needed to satisfy the claims identified in (b) of this subsection if filed in a Washington state court of law.
(e) The attorney general may limit the intake of the amount of claims for review to no more than thirty per month to be addressed by the ombuds.
(f) The attorney general and ombuds may not obligate or disperse amounts that are not available in the environmental justice claims account.
Sec. 8. RCW 36.70A.290 and 2011 c 277 s 1 are each amended to read as follows:
(1) All requests for review to the growth management hearings board shall be initiated by filing a petition that includes a detailed statement of issues presented for resolution by the board. The board shall collect an assessment of two hundred fifty dollars from the requester of the review to be remitted to the state treasurer and placed in the environmental justice claims account created in section 9 of this act. The board shall render written decisions articulating the basis for its holdings. The board shall not issue advisory opinions on issues not presented to the board in the statement of issues, as modified by any prehearing order.
(2) All petitions relating to whether or not an adopted comprehensive plan, development regulation, or permanent amendment thereto, is in compliance with the goals and requirements of this chapter or chapter 90.58 or 43.21C RCW must be filed within sixty days after publication as provided in (a) through (c) of this subsection.
(a) Except as provided in (c) of this subsection, the date of publication for a city shall be the date the city publishes the ordinance, or summary of the ordinance, adopting the comprehensive plan or development regulations, or amendment thereto, as is required to be published.
(b) Promptly after adoption, a county shall publish a notice that it has adopted the comprehensive plan or development regulations, or amendment thereto.
Except as provided in (c) of this subsection, for purposes of this section the date of publication for a county shall be the date the county publishes the notice that it has adopted the comprehensive plan or development regulations, or amendment thereto.
(c) For local governments planning under RCW 36.70A.040, promptly after approval or disapproval of a local government's shoreline master program or amendment thereto by the department of ecology as provided in RCW 90.58.090, the department of ecology shall publish a notice that the shoreline master program or amendment thereto has been approved or disapproved. For purposes of this section, the date of publication for the adoption or amendment of a shoreline master program is the date the department of ecology publishes notice that the shoreline master program or amendment thereto has been approved or disapproved.
(3) Unless the board dismisses the petition as frivolous or finds that the person filing the petition lacks standing, or the parties have filed an agreement to have the case heard in superior court as provided in RCW 36.70A.295, the board shall, within ten days of receipt of the petition, set a time for hearing the matter.
(4) The board shall base its decision on the record developed by the city, county, or the state and supplemented with additional evidence if the board determines that such additional evidence would be necessary or of substantial assistance to the board in reaching its decision.
(5) The board, shall consolidate, when appropriate, all petitions involving the review of the same comprehensive plan or the same development regulation or regulations.
NEW SECTION.  Sec. 9. The environmental justice claims account is created in the custody of the state treasury. All receipts from the assessment in RCW 36.70A.290 must be deposited into the account. Only the attorney general or the environmental justice ombuds may authorize expenditures from the account. Expenditures from the account must be used only for the purposes identified in section 7 of this act. The account is subject to allotment procedures under chapter 43.88 RCW, but an appropriation is not required for expenditures. The account is subject to audit by the state auditor.
Sec. 10. RCW 43.79A.040 and 2018 c 260 s 28, 2018 c 258 s 4, and 2018 c 127 s 6 are each reenacted and amended to read as follows:
(1) Money in the treasurer's trust fund may be deposited, invested, and reinvested by the state treasurer in accordance with RCW 43.84.080 in the same manner and to the same extent as if the money were in the state treasury, and may be commingled with moneys in the state treasury for cash management and cash balance purposes.
(2) All income received from investment of the treasurer's trust fund must be set aside in an account in the treasury trust fund to be known as the investment income account.
(3) The investment income account may be utilized for the payment of purchased banking services on behalf of treasurer's trust funds including, but not limited to, depository, safekeeping, and disbursement functions for the state treasurer or affected state agencies. The investment income account is subject in all respects to chapter 43.88 RCW, but no appropriation is required for payments to financial institutions. Payments must occur prior to distribution of earnings set forth in subsection (4) of this section.
(4)(a) Monthly, the state treasurer must distribute the earnings credited to the investment income account to the state general fund except under (b), (c), and (d) of this subsection.
(b) The following accounts and funds must receive their proportionate share of earnings based upon each account's or fund's average daily balance for the period: The 24/7 sobriety account, the Washington promise scholarship account, the Gina Grant Bull memorial legislative page scholarship account, the Washington advanced college tuition payment program account, the Washington college savings program account, the accessible communities account, the Washington achieving a better life experience program account, the community and technical college innovation account, the agricultural local fund, the American Indian scholarship endowment fund, the foster care scholarship endowment fund, the foster care endowed scholarship trust fund, the contract harvesting revolving account, the Washington state combined fund drive account, the commemorative works account, the county enhanced 911 excise tax account, the toll collection account, the developmental disabilities endowment trust fund, the energy account, the fair fund, the family and medical leave insurance account, the fish and wildlife federal lands revolving account, the natural resources federal lands revolving account, the food animal veterinarian conditional scholarship account, the forest health revolving account, the fruit and vegetable inspection account, the future teachers conditional scholarship account, the game farm alternative account, the GET ready for math and science scholarship account, the Washington global health technologies and product development account, the grain inspection revolving fund, the environmental justice claims account, the Washington history day account, the industrial insurance rainy day fund, the juvenile accountability incentive account, the law enforcement officers' and firefighters' plan 2 expense fund, the local tourism promotion account, the low-income home rehabilitation revolving loan program account, the multiagency permitting team account, the northeast Washington wolf-livestock management account, the pilotage account, the produce railcar pool account, the regional transportation investment district account, the rural rehabilitation account, the Washington sexual assault kit account, the stadium and exhibition center account, the youth athletic facility account, the self-insurance revolving fund, the children's trust fund, the Washington horse racing commission Washington bred owners' bonus fund and breeder awards account, the Washington horse racing commission class C purse fund account, the individual development account program account, the Washington horse racing commission operating account, the life sciences discovery fund, the Washington state heritage center account, the reduced cigarette ignition propensity account, the center for childhood deafness and hearing loss account, the school for the blind account, the Millersylvania park trust fund, the public employees' and retirees' insurance reserve fund, the school employees' benefits board insurance reserve fund, (([the]))the public employees' and retirees' insurance account, (([the]))the school employees' insurance account, and the radiation perpetual maintenance fund.
(c) The following accounts and funds must receive eighty percent of their proportionate share of earnings based upon each account's or fund's average daily balance for the period: The advanced right-of-way revolving fund, the advanced environmental mitigation revolving account, the federal narcotics asset forfeitures account, the high occupancy vehicle account, the local rail service assistance account, and the miscellaneous transportation programs account.
(d) Any state agency that has independent authority over accounts or funds not statutorily required to be held in the custody of the state treasurer that deposits funds into a fund or account in the custody of the state treasurer pursuant to an agreement with the office of the state treasurer shall receive its proportionate share of earnings based upon each account's or fund's average daily balance for the period.
(5) In conformance with Article II, section 37 of the state Constitution, no trust accounts or funds shall be allocated earnings without the specific affirmative directive of this section.
Sec. 11. RCW 42.56.240 and 2018 c 285 s 1 and 2018 c 171 s 7 are each reenacted and amended to read as follows:
The following investigative, law enforcement, and crime victim information is exempt from public inspection and copying under this chapter:
(1) Specific intelligence information and specific investigative records compiled by investigative, law enforcement, and penology agencies, and state agencies vested with the responsibility to discipline members of any profession, the nondisclosure of which is essential to effective law enforcement or for the protection of any person's right to privacy;
(2) Information revealing the identity of persons who are witnesses to or victims of crime or who file complaints with investigative, law enforcement, or penology agencies, other than the commission, if disclosure would endanger any person's life, physical safety, or property. If at the time a complaint is filed the complainant, victim, or witness indicates a desire for disclosure or nondisclosure, such desire shall govern. However, all complaints filed with the commission about any elected official or candidate for public office must be made in writing and signed by the complainant under oath;
(3) Any records of investigative reports prepared by any state, county, municipal, or other law enforcement agency pertaining to sex offenses contained in chapter 9A.44 RCW or sexually violent offenses as defined in RCW 71.09.020, which have been transferred to the Washington association of sheriffs and police chiefs for permanent electronic retention and retrieval pursuant to RCW 40.14.070(2)(b);
(4) License applications under RCW 9.41.070; copies of license applications or information on the applications may be released to law enforcement or corrections agencies;
(5) Information revealing the identity of child victims of sexual assault who are under age eighteen. Identifying information means the child victim's name, address, location, photograph, and in cases in which the child victim is a relative or stepchild of the alleged perpetrator, identification of the relationship between the child and the alleged perpetrator;
(6) Information contained in a local or regionally maintained gang database as well as the statewide gang database referenced in RCW 43.43.762;
(7) Data from the electronic sales tracking system established in RCW 69.43.165;
(8) Information submitted to the statewide unified sex offender notification and registration program under RCW 36.28A.040(6) by a person for the purpose of receiving notification regarding a registered sex offender, including the person's name, residential address, and email address;
(9) Personally identifying information collected by law enforcement agencies pursuant to local security alarm system programs and vacation crime watch programs. Nothing in this subsection shall be interpreted so as to prohibit the legal owner of a residence or business from accessing information regarding his or her residence or business;
(10) The felony firearm offense conviction database of felony firearm offenders established in RCW 43.43.822;
(11) The identity of a state employee or officer who has in good faith filed a complaint with an ethics board, as provided in RCW 42.52.410, or who has in good faith reported improper governmental action, as defined in RCW 42.40.020, to the auditor or other public official, as defined in RCW 42.40.020;
(12) The following security threat group information collected and maintained by the department of corrections pursuant to RCW 72.09.745: (a) Information that could lead to the identification of a person's security threat group status, affiliation, or activities; (b) information that reveals specific security threats associated with the operation and activities of security threat groups; and (c) information that identifies the number of security threat group members, affiliates, or associates;
(13) The global positioning system data that would indicate the location of the residence of an employee or worker of a criminal justice agency as defined in RCW 10.97.030;
(14) Body worn camera recordings to the extent nondisclosure is essential for the protection of any person's right to privacy as described in RCW 42.56.050, including, but not limited to, the circumstances enumerated in (a) of this subsection. A law enforcement or corrections agency shall not disclose a body worn camera recording to the extent the recording is exempt under this subsection.
(a) Disclosure of a body worn camera recording is presumed to be highly offensive to a reasonable person under RCW 42.56.050 to the extent it depicts:
(i)(A) Any areas of a medical facility, counseling, or therapeutic program office where:
(I) A patient is registered to receive treatment, receiving treatment, waiting for treatment, or being transported in the course of treatment; or
(II) Health care information is shared with patients, their families, or among the care team; or
(B) Information that meets the definition of protected health information for purposes of the health insurance portability and accountability act of 1996 or health care information for purposes of chapter 70.02 RCW;
(ii) The interior of a place of residence where a person has a reasonable expectation of privacy;
(iii) An intimate image;
(iv) A minor;
(v) The body of a deceased person;
(vi) The identity of or communications from a victim or witness of an incident involving domestic violence as defined in RCW 10.99.020 or sexual assault as defined in RCW 70.125.030, or disclosure of intimate images as defined in RCW 9A.86.010. If at the time of recording the victim or witness indicates a desire for disclosure or nondisclosure of the recorded identity or communications, such desire shall govern; or
(vii) The identifiable location information of a community-based domestic violence program as defined in RCW 70.123.020, or emergency shelter as defined in RCW 70.123.020.
(b) The presumptions set out in (a) of this subsection may be rebutted by specific evidence in individual cases.
(c) In a court action seeking the right to inspect or copy a body worn camera recording, a person who prevails against a law enforcement or corrections agency that withholds or discloses all or part of a body worn camera recording pursuant to (a) of this subsection is not entitled to fees, costs, or awards pursuant to RCW 42.56.550 unless it is shown that the law enforcement or corrections agency acted in bad faith or with gross negligence.
(d) A request for body worn camera recordings must:
(i) Specifically identify a name of a person or persons involved in the incident;
(ii) Provide the incident or case number;
(iii) Provide the date, time, and location of the incident or incidents; or
(iv) Identify a law enforcement or corrections officer involved in the incident or incidents.
(e)(i) A person directly involved in an incident recorded by the requested body worn camera recording, an attorney representing a person directly involved in an incident recorded by the requested body worn camera recording, a person or his or her attorney who requests a body worn camera recording relevant to a criminal case involving that person, or the executive director from either the Washington state commission on African-American affairs, Asian Pacific American affairs, or Hispanic affairs, has the right to obtain the body worn camera recording, subject to any exemption under this chapter or any applicable law. In addition, an attorney who represents a person regarding a potential or existing civil cause of action involving the denial of civil rights under the federal or state Constitution, or a violation of a United States department of justice settlement agreement, has the right to obtain the body worn camera recording if relevant to the cause of action, subject to any exemption under this chapter or any applicable law. The attorney must explain the relevancy of the requested body worn camera recording to the cause of action and specify that he or she is seeking relief from redaction costs under this subsection (14)(e).
(ii) A law enforcement or corrections agency responding to requests under this subsection (14)(e) may not require the requesting individual to pay costs of any redacting, altering, distorting, pixelating, suppressing, or otherwise obscuring any portion of a body worn camera recording.
(iii) A law enforcement or corrections agency may require any person requesting a body worn camera recording pursuant to this subsection (14)(e) to identify himself or herself to ensure he or she is a person entitled to obtain the body worn camera recording under this subsection (14)(e).
(f)(i) A law enforcement or corrections agency responding to a request to disclose body worn camera recordings may require any requester not listed in (e) of this subsection to pay the reasonable costs of redacting, altering, distorting, pixelating, suppressing, or otherwise obscuring any portion of the body worn camera recording prior to disclosure only to the extent necessary to comply with the exemptions in this chapter or any applicable law.
(ii) An agency that charges redaction costs under this subsection (14)(f) must use redaction technology that provides the least costly commercially available method of redacting body worn camera recordings, to the extent possible and reasonable.
(iii) In any case where an agency charges a requestor for the costs of redacting a body worn camera recording under this subsection (14)(f), the time spent on redaction of the recording shall not count towards the agency's allocation of, or limitation on, time or costs spent responding to public records requests under this chapter, as established pursuant to local ordinance, policy, procedure, or state law.
(g) For purposes of this subsection (14):
(i) "Body worn camera recording" means a video and/or sound recording that is made by a body worn camera attached to the uniform or eyewear of a law enforcement or corrections officer while in the course of his or her official duties; and
(ii) "Intimate image" means an individual or individuals engaged in sexual activity, including sexual intercourse as defined in RCW 9A.44.010 and masturbation, or an individual's intimate body parts, whether nude or visible through less than opaque clothing, including the genitals, pubic area, anus, or postpubescent female nipple.
(h) Nothing in this subsection shall be construed to restrict access to body worn camera recordings as otherwise permitted by law for official or recognized civilian and accountability bodies or pursuant to any court order.
(i) Nothing in this section is intended to modify the obligations of prosecuting attorneys and law enforcement under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), Kyles v. Whitley, 541 U.S. 419, 115 S. Ct. 1555, 131 L. Ed.2d 490 (1995), and the relevant Washington court criminal rules and statutes.
(j) A law enforcement or corrections agency must retain body worn camera recordings for at least sixty days and thereafter may destroy the records in accordance with the applicable records retention schedule;
(15) Any records and information contained within the statewide sexual assault kit tracking system established in RCW 43.43.545;
(16)(a) Survivor communications with, and survivor records maintained by, campus-affiliated advocates.
(b) Nothing in this subsection shall be construed to restrict access to records maintained by a campus-affiliated advocate in the event that:
(i) The survivor consents to inspection or copying;
(ii) There is a clear, imminent risk of serious physical injury or death of the survivor or another person;
(iii) Inspection or copying is required by federal law; or
(iv) A court of competent jurisdiction mandates that the record be available for inspection or copying.
(c) "Campus-affiliated advocate" and "survivor" have the definitions in RCW 28B.112.030;
(17) Information and records prepared, owned, used, or retained by the Washington association of sheriffs and police chiefs and information and records prepared, owned, used, or retained by the Washington state patrol pursuant to chapter 261, Laws of 2017; ((and))
(18) Any and all audio or video recordings of child forensic interviews as defined in chapter 26.44 RCW. Such recordings are confidential and may only be disclosed pursuant to a court order entered upon a showing of good cause and with advance notice to the child's parent, guardian, or legal custodian. However, if the child is an emancipated minor or has attained the age of majority as defined in RCW 26.28.010, advance notice must be to the child. Failure to disclose an audio or video recording of a child forensic interview as defined in chapter 26.44 RCW is not grounds for penalties or other sanctions available under this chapter; and
(19) All records submitted to the attorney general's office for review by the environmental justice ombuds as part of a claim under section 7(3) of this act, and any records created by the department of commerce related to the claim. However, information detailing activity in the environmental justice claims account created in section 9 of this act must be disclosed, including the name of any person receiving a payment from the account, the amount of the payment, the determination made by the ombuds justifying and authorizing the payment, and any settlement or agreement connected to a payment from the account."
Renumber the remaining sections consecutively, correct any internal references accordingly, and correct the title.
EFFECT: Creates an environmental justice ombuds in the consumer protection division of the Attorney General's Office. Makes the ombuds responsible for reviewing and paying claims related to constitutional violations related to the implementation of the Shoreline Management Act and the Growth Management Act, including inverse condemnation, violations of the Fifth Amendment of the United States Constitution, and other specified legal grounds. Establishes a $250 charge for petitions for review of a Growth Management Act decision by the Growth Management Hearings Board, and deposits the money in an environmental justice claims account for use in paying claims of up to $5,000 for violations of constitutional protections occurring under the Growth Management Act, Shoreline Management Act, and related court interpretations.
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