[Filed December 4, 2019, 2:16 p.m., effective January 4, 2020]
Effective Date of Rule: Thirty-one days after filing.
Purpose: The Washington economic development finance authority (the agency) is engaging in the rule-making process to publish its public records compliance requirements, including information about the agency's organization, operations and procedures.
Citation of Rules Affected by this Order: New chapters 178-02 and 178-03 WAC.
Adopted under notice filed as WSR 19-20-009 on September 19, 2019.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at the Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's own Initiative: New 0, Amended 0, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 18, Amended 0, Repealed 0.
Number of Sections Adopted using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.
Date Adopted: December 4, 2019.
Chapter 178-02 WAC
ORGANIZATION, OPERATIONS AND PROCEDURES
The purpose of this chapter shall be to ensure compliance by the Washington economic development finance authority with the provisions of RCW 42.56 and RCW 34.05.
WAC 178-02-020Rules of interpretation.
(1) All adjectives and adverbs, including but not limited to the words "adequate," "approved," "qualified," "reasonable," "reputable," "satisfactory," "sufficiently," and "suitable," as used in this title to qualify a person, procedure, process or otherwise shall be as determined by the authority or its designee.
(2) Where the word "shall" is used in this title, the subject rule or action to which the word relates is mandatory.
(3) Where the word "should" is used in this title, it indicates suggestion or recommendation but not a requirement.
(4) Where the word "may" is used in this title, the action or rule to which the word relates is permissive or discretionary.
(5) Words importing the singular number may also be applied to the plural of persons and things; words importing the plural may be applied to the singular; and words importing a specific gender may also be extended to any gender and be considered to relate equally to any person.
(1) "Act" means RCW 43.163, as amended.
(2) "Washington economic development finance authority" and "authority" each mean the corporate and politic public body created by the act and also refer to the staff and employees of the authority.
(3) "Board" means the members of the authority acting collectively as the governing body of the authority.
The terms defined in the act shall have the same meaning when used in this title.
WAC 178-02-040Description of organization.
(1) The authority is a public entity established under the provisions of RCW 43.163, which exercises essential governmental functions. The authority was created by the legislature of the state of Washington to establish a state economic development finance authority to act as a financial conduit that, without using state funds or lending the credit of the state or local governments, can issue nonrecourse revenue bonds and participate in federal, state, and local economic development programs to help facilitate access to needed capital by Washington businesses that cannot otherwise readily obtain needed capital on terms and rates comparable to large corporations, and can help local government obtain more capital more efficiently. The act also sets forth as a primary purpose the encouragement of the employment and retention of Washington workers at meaningful wages and to develop innovative approaches to the problem of unmet capital needs.
(2) Members. The authority shall consist of seventeen members as follows: The director of the department of commerce, the director of the department of agriculture, the state treasurer, one member from each caucus in the house of representatives appointed by the speaker of the house, one member from each caucus in the senate appointed by the president of the senate, and ten public members with one representative of women-owned businesses and one representative of minority-owned businesses and with at least three of the members residing east of the Cascades. The public members shall be residents of the state appointed by the governor on the basis of their interest or expertise in trade, agriculture or business finance or jobs creation and development. One of the public members shall be appointed by the governor as chair of the authority and shall serve as chair of the authority at the pleasure of the governor. The term of the persons appointed by the governor as public members of the authority, including the public member appointed as chair, shall be four years from the date of appointment.
In the event of a vacancy on the authority due to death, resignation or removal of one of the public members, or upon the expiration of the term of one of the public members, the governor shall appoint a successor for the remainder of the unexpired term. If any of the state offices is abolished, the resulting vacancy on the authority shall be filled by the state officer who shall succeed substantially to the power and duties of the abolished office.
Any public member of the authority may be removed by the governor for misfeasance, malfeasance or willful neglect of duty after notice and a public hearing, unless such notice and hearing shall be expressly waived in writing by the affected public member.
The state officials serving in ex officio capacity may each designate an employee of their respective departments to act on their behalf in all respects with regard to any matter to come before the authority. Such designations shall be made in writing and provided to the authority.
The members of the authority shall serve without compensation but shall be entitled to reimbursement, solely from the funds of the authority, for expenses incurred in the discharge of their duties under this chapter.
Any public member may continue to serve past their scheduled term of office until the governor has appointed a new member to replace such member.
(3) Authority staff. The executive director shall be the chief operating officer of the authority and subject to the direction of the board. The executive director shall serve solely at the pleasure of the board. As the chief operating officer, the executive director is responsible for day-to-day operations and for operating the authority under the requirements of the Washington law. Compensation for the executive director shall be paid from non-appropriated funds under the control of the authority. Compensation, pay and benefits shall be reviewed annually by the board. The executive director may hire, terminate and pay subordinate staff as necessary, subject to board approval of additional subordinate staff positions and board approval of necessary budgeted funds. The executive director shall have custody of and be responsible for all moneys and securities of the authority and shall deposit all such moneys forthwith in such banks and funds as the authority may designate from time to time.
(4) Administrative office. The administrative office of the authority shall be located at 1000 Second Avenue, Suite 2700, Seattle, WA 98104-1046.
(5) Communications with the authority. To request information, or to make submittals or requests, or to obtain copies of agency decisions, members of the public may contact the authority at the following:
Attn: Executive Director
Washington Economic Development Finance Authority
1000 Second Avenue, Suite 2700
Seattle, WA 98104-1046
WAC 178-02-050Operations and procedures—General
(1) Authority meetings. The meetings of the authority shall all be "regular meetings" or "special meetings" as those designations are applied in RCW 42.30. Regular meetings shall be scheduled for each calendar quarter under an agreed upon schedule and location by the authority, and notice thereof shall be provided as required in RCW 42.30. Special meetings may be called at any time by the chair or a majority of the board. Notice of all special meetings shall be given by delivering personally, or by mail, fax or electronic mail, to each member a written notice specifying the time and place of the meeting and a copy of the agenda prepared by the executive director in consultation with the chair, and by giving such notice to the public as required by RCW 42.30. Pursuant to RCW 42.30.080
(4), in certain circumstances, the notice requirements for a special meeting may be dispensed with where an emergency is deemed to exist. An executive session may be called by the authority to consider the appointment, employment or dismissal of an officer or employee, and such other matters as are permitted by RCW 42.30.110
. Except during executive sessions, all meetings shall be open to the public under the guidelines established by state law for public bodies.
(2) Quorum. Nine members shall constitute a quorum, and the act of a majority of the members present at any meeting, if there is a quorum, shall be deemed the act of the authority. Members participating in a meeting through the use of any means of communication by which all members participating can hear each other during the meeting shall be deemed to be present at the meeting for all purposes.
(3) Chair's, vice chair's or secretary's voting rights. The chair, vice chair and secretary shall have the right to vote on all matters before the authority, just as any other authority member.
(4) Minutes of meetings. The executive director, at the direction of the secretary, shall keep minutes of the proceedings of the authority reflecting board member attendance and actions taken during the meeting.
(5) Rules of order. The authority shall generally follow Robert's Rules of Order, newly revised, in conducting its meetings.
(6) Form of authority action. The authority may act on the basis of a motion except when authorizing issuance of bonds and when otherwise taking official and formal action with respect to the creation of special funds and the issuance and sale of bonds for a project of a participant, in which case the authority shall act by resolution. Resolutions shall be adopted and motions approved upon the affirmative vote of a majority of the members of the authority present at any meeting. All bonds and coupons shall bear either the manual or the facsimile signatures of the governor and executive director.
(7) Public participation. The presiding officer may grant permission to any person or organization to make a presentation at any of the authority's public meetings. The presiding officer may limit any remarks addressed to the authority.
WAC 178-02-060Operations and procedures—Authority officers and committees.
(1) The officers of the authority. As described in the act, the chair shall be appointed by the governor. A vice chair, secretary and any additional officers determined necessary by the authority shall be elected by majority vote of the board and serve until replaced by a majority vote of the members voting. The term of officers elected by the board shall continue until the earlier of: (a) the stated term of such appointment, (b) the death, resignation or removal of such officer from such position or from the board or (c) the election of a new officer for such position.
(2) Authority chair and vice chair. In addition to any other duties assigned to the chair by the act, by vote of the board or by this chapter, the chair shall convene board meetings and shall preside over the deliberations of the meeting. The chair shall be a member of each board committee and shall have the ability to vote on any matter coming before such committee; provided, that the chair shall not vote as an audit committee member on any matter on which the vice chair determines the chair would not have adequate objectivity due to the chair's check-signing authority. The vice chair shall act in the chair's absence with his or her same authority and chair special committees as designated by the authority chair; provided, that the vice chair shall not act as a signatory to financial account transactions.
(3) Secretary. The secretary shall be responsible for directing the executive director and staff in keeping minutes and records of board actions, sending out meeting announcements, distributing copies of minutes and the agenda to each board member and assuring that corporate records are maintained.
(4) Committee formation. The authority, either by direction of the chair or action of the board, may create committees as needed. All committees created by the authority shall be advisory in nature only and shall not act on behalf of the authority. Each committee will have a committee chairperson appointed by the chair of the authority. The committee chair may request the participation of any authority member willing to participate; provided, that no committee shall have members sufficient to constitute a quorum of the authority; provided further, that no committee meeting shall have sufficient authority members present and participating to constitute a quorum of the authority. The authority chair is an ex-officio member of all committees.
(5) Executive committee. The authority has and shall maintain an executive committee. The chair, vice chair and secretary comprise the membership of the executive committee. The executive director may serve as a non-voting ex-officio member of the executive committee. The executive committee may review issues and make recommendations to the full board. The executive committee may make recommendations regarding the annual performance evaluation of the executive director. The committee may, with the consent of the chair, delegate to the chair the making of any recommendation regarding the annual performance evaluation of the executive director.
(6) Audit committee. The authority has and shall maintain an audit committee. The audit committee is chaired by the vice chair of the authority and operates with at least three members of the board. The audit committee shall review the financial actions by the executive director and staff. The audit committee may develop and review the authority's fiscal procedures.
WAC 178-02-070Operations and procedures—Miscellaneous.
(1) Budget. Each year, the executive director and the executive committee shall prepare and recommend to the board an annual budget. Following such a recommendation, the board shall approve an annual budget. All authority expenditures must be within the total budget. If annual expenses are expected to exceed the budget, the executive director may submit a budget amendment to the board for the board's consideration. Any change in the budget sought by the executive director which proposes an increase of more than 10% in annual expenditures over the existing budget shall be submitted to the audit committee or the executive committee for review prior to submission to the board.
(2) Fiscal year. The authority's fiscal year shall be the calendar year.
(3) All financing documents relating to any issuance of the authority's nonrecourse revenue bonds to which the authority is a party may be executed or attested to by any of the following officials of the authority: the chair, the vice chair, the secretary and the executive director.
Chapter 178-03 WAC
The purpose of this chapter shall be to ensure compliance by the Washington economic development finance authority with the provisions of RCW 42.56.001
, dealing with public records.
(1) "Public record" includes any writing containing information relating to the conduct of government or the performance of any governmental or propriety function prepared, owned, used, or retained by any state or local agency, regardless of physical form or characteristics.
(2) "Writing" means handwriting, typewriting, printing, photostating, photographing, and every other means of recording any form of communication or representation including, but not limited to, letters, words, pictures, sounds, or symbols, or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, motion picture, film and video recordings, magnetic or punched cards, discs, drums, diskettes, sound recordings, and other documents including existing data compilations from which information may be obtained or translated.
(3) "Washington economic development finance authority" and "authority" each refers to that state agency described in RCW 43.163.120
Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040
WAC 178-03-030Public records available.
All public records of the authority are deemed to be available for public inspection and copying pursuant to these rules, except as otherwise provided by RCW 42.56.
WAC 178-03-040Public records officer.
The authority's public records shall be under the charge of the public records officer designated by the executive director of the authority. The person so designated shall be located in the administrative office of the authority. The public records officer shall be responsible for implementing the authority's rules and regulations regarding release of public records, coordinating the staff of the authority in this regard and generally ensuring compliance by the staff with the public records disclosure requirements of RCW 42.56.
WAC 178-03-050Office hours.
Public records shall be available for inspection and copying by appointment from 9:00 a.m. to noon and from 1:00 p.m. to 4:00 p.m., Monday through Friday, excluding legal holidays.
WAC 178-03-060Requests for public records.
In accordance with the requirements of RCW 42.56 that agencies prevent unreasonable invasion of privacy, that they protect public records from damage or disorganization, and that they prevent excessive interference with essential functions of the agency, public records may be inspected or copied or copies of such records may be obtained by members of the public upon compliance with the following procedures:
(1) A request shall be made in writing upon a form prescribed by the authority, which form shall be available at its administrative office. The form shall be presented by the public records officer, or to any member of the authority's staff if the public records officer is not available, at the administrative office of the authority during the office hours specified in WAC 178-03-050. The request shall include the following information:
(a) The name of the person requesting the record;
(b) The time of day and calendar date on which the request was made;
(c) The nature of the request;
(d) If the matter requested is referenced within the current index maintained by the public records officer, a reference to the requested record as it is described in such current index;
(e) If the requested matter is not identifiable by reference to the authority's current index, an appropriate description of the record requested.
(1) No fee shall be charged for the inspection of public records.
(2) The following copy fees and payment procedures apply to requests to the authority under chapter 42.56
(a) Pursuant to RCW 42.56.120
(2)(b), the authority is not calculating all actual costs for copying records because to do so would be unduly burdensome for the following reasons:
(i) The authority does not have the resources to conduct a study to determine all of its actual copying costs;
(ii) To conduct such a study would interfere with other essential agency functions; and
(iii) Through the 2017 legislative process, the public and requesters have commented on and been informed of authorized fees and costs, including for electronic records, provided in RCW 42.56.120
(2)(b) and (c), (3), and (4).
(b) The authority will charge for copies of records pursuant to the default fees in RCW 42.56.120
(2)(b) and (c). The authority will charge for customized services pursuant to RCW 42.56.120
(3). Under RCW 42.56.130
, the authority may charge other copy fees authorized by statutes outside of RCW 42.56. The authority may enter into an alternative fee agreement with a requester under RCW 42.56.120
(3) The authority may agree to provide copies without fee to federal, state, local, or tribal governments, or to others, when doing so is in the best interest of the authority.
WAC 178-03-080Review of denials of public records requests.
(1) Any person who objects to the denial of a request for a public record may petition for prompt review of such decision by tendering a written request for review. The written request shall specifically refer to the written statement by the public records officer or other staff member which constituted or accompanied the denial.
(2) Immediately after receiving a written request for review of a decision denying a public record, the public records officer or other staff member denying the request shall refer it to the executive director of the authority. The executive director shall return a final decision by the end of the second business day following denial of inspection.
(3) Administrative remedies shall not be considered exhausted until the authority has returned the petition with a decision or until the close of the second business day following denial of inspection, whichever occurs first.
WAC 178-03-090Protection of public records.
In order that public records maintained on the premises of the authority may be protected from damage or disorganization as required by RCW 42.56.100
, the following procedures and practices are hereby instituted:
(1) Upon receipt of a request by a member of the public for a public record, the public records officer or the staff member in the authority's office receiving the request shall review the request for a public record and the requested public record to determine whether deletions from such record should be made or the request for such record should be denied.
(2) Only after a determination has been made that all or such portion of a public record as is not deleted may be inspected shall such public record or portion thereof be made available for inspection by a member of the public.
(3) Only the staff and members of the authority may open authority files to gain access to authority records for either authority business or to respond to a request for a public record.
(4) No public record of the authority may be taken from the premises of the authority by a member of the public.
(5) Public inspection of authority records shall be done only in such locations as are approved by the public records officer, which locations must provide an opportunity for authority staff members to ensure that no public record of the authority is damaged, destroyed, unreasonably disorganized or removed from its proper location or order by a member of the public.
(6) Public records of the authority may be copied only on the copying machines at the premises of the authority unless other arrangements are authorized by the public records officer.
WAC 178-03-100Records index.
(1) The authority has available to all persons a current index which provides identifying information as to the following records issued, adopted or promulgated since its inception:
(a) Final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;
(b) Those statements of policy and interpretations of policy, statute, and the Constitution which have been adopted by the authority;
(c) Administrative staff manuals and instructions to staff that affect a member of the public;
(d) Planning policies and goals, and interim and final planning decisions;
(e) Factual staff reports and studies, factual consultant's reports and studies, scientific reports and studies, and reports or surveys, and any other factual information derived from tests, studies, reports, or surveys, whether conducted by public employees or others; and
(f) Correspondence, and materials referred to therein, by and with the authority relating to any regulatory, supervisory, or enforcement responsibilities of the authority, whereby the authority determines, or opines upon, or is asked to determine or opine upon, the rights of the state, the public, a subdivision of state government, or any private party.
(2) The current index promulgated by the authority shall be available to all persons under the same rules and on the same conditions as are applied to public records available for inspection.
WAC 178-03-110Exemptions list.
(1) For informational purposes, the following is a list of every law, other than those listed in RCW 42.56, that the authority believes exempts or prohibits disclosure of specific information or records of the authority:
(a) The attorney-client privilege as codified at RCW 5.60.060
(2) Notwithstanding the foregoing, pursuant to RCW 42.56.070
(2), the failure of the authority to list any exemption herein shall not affect the efficacy of any such exemption.