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Bob Ferguson

AGLO 1971 No. 7 -
Attorney General Slade Gorton

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                                                                 January 15, 1971
Mr. Ernest Geissler, P.E.
Administrative Engineer
County Road Administration Board
106 Maple Park
Olympia, Washington 98501
                                                                                              Cite as:  AGLO 1971 No. 7 (not official)
Dear Mr. Geissler:
            Is there any legal requirement of publication or posting of a notice of hearing before the holding of "public hearings" which are required by RCW 36.81.121 prior to the adoption, annual revision or other revision of the six-year comprehensive road program?
            We answer your inquiry as explained below.
            As you are aware, the legislature by the enactment of § 1, chapter 195, Laws of 1961 (codified as RCW 36.81.121) required each board of county commissioners to prepare and adopt a comprehensive road program for a six-year period.  It also required that every biennium thereafter each county board revise and extend the comprehensive six-year road program.  The legislative purpose was to assure perpetually that every county would have advance plans looking to a future of not less than four years as a guide in carrying out its coordinated road construction program.
            The original 1961 statute was subsequently amended by the enactment of § 26, chapter 83, Laws of 1967 First Ex. Sess., which provides in pertinent part:
             [[Orig. Op. Page 2]]
            "Prior to July 1, 1968, the board of county commissioners of each county with the advice and assistance of the county road engineer, and pursuant to one or more public hearings thereon, shall prepare and adopt a comprehensive road program for the ensuing six calendar years and shall file the same with the director of highways not more than thirty days after its adoption by the board.  Annually thereafter each board shall review the work accomplished under the program and determine current county road needs.  Based on these findings each board shall prepare and after public hearing thereon adopt a revised and extended comprehensive road program, and each one year extension and revision shall be filed with the director of highways not more than thirty days after its adoption by the board.  The purpose of this section shall be to assure that perpetually each county shall have available advanced plans, looking to the future for not less than six years as a guide in carrying out a coordinated road construction program.  Such program may at any time be revised by a majority of the board but only after a public hearing thereon."  (Emphasis supplied)
            The only notable difference between the 1961 and 1967 acts is that the time period for revision was reduced from every two years to annually.  References in the statute to public hearings were not revised by the 1967 act.
            There is no express requirement in the instant statute or any other statutes specifically referring to the formulation and adoption of a comprehensive road program for publication, posting of notice or any other specific dissemination of information.  Before proceeding further, we should point out that your inquiry deals only with the question of notice of the "public hearings" and not with notice as to the formal adoption of the plan or its revisions by the county commissioners.  We note that difference because the adoption of the plan as contrasted with its formulation would be subject to the provisions of the general public meeting statute adopted in 1953 (chapter 216, Laws of 1953 ‑ codified as chapter 42.32 RCW).  In pertinent part that law provides in RCW 42.32.010:
            "No board, commission, agency or authority of the state of Washington, nor the governing board, commission, agency or authority of any political subdivision exercising legislative, regulatory  [[Orig. Op. Page 3]] or directive powers, shall adopt any ordinance, resolution, rule, regulation, order or directive, except in a meeting open to the public and then only at a meeting, the date of which is fixed by law or rule, or at a meeting of which public notice has been given by notifying press, radio and television in the county and by such other means as may now or hereafter be provided by law:  . . ."
            It should be noted as we have done in earlier opinions1/ that this statute only affirmatively requires notice to the press if the meeting date is held at a time other than that established by law or rule.
            With the foregoing in mind, the following discussion only relates to "public hearings" under RCW 36.81.121, in which legislative, regulatory or directive powers are not being exercised.  Such hearings would be preliminary to the actual adoption of the comprehensive road program or revisions of the same.  In this context not only is RCW 36.81.121 silent but so are other statutes with regards to public notification or dissemination of information.  Admittedly, it would appear strange for the legislature to affirmatively require "public hearings" and yet permit the hearings to be held in secret.  Thus, in construing the statute, we must strive to achieve the legislative purpose which is to actually have public hearings.  See, Alderwood Water Dist. v. Pope & Talbot, 62 Wn.2d 319, 382 P.2d 639 (1963).
            The public meeting statute in RCW 42.32.020 already provided:
            "All meetings, regular and special, of any such board, commission, agency and authority are hereby declared to be public meetings, open to the public at all times:  . . ."  (Emphasis supplied)
            The term "public meetings" often has the connotation of simply permitting the public the right to freely attend the meeting.  See, City of Lexington v. Davis, 221 S.W.2d 659, 310 Ky. 751 (1949).  It is noteworthy, however, that the legislature in RCW 36.81.121 used the term "public hearing" rather than "public meeting."  The term "public hearing" connotes some opportunity for participation as contrasted with simple attendance.  A number of courts have concluded  [[Orig. Op. Page 4]] that for a public hearing there is a right not only to appear and give evidence, but also to examine witnesses.  See, Mayfield Gas Co. v. Public Service Commission, 259 S.W.2d 8 (Ky., 1953); Braden v. Much, 87 N.E.2d 620, 403 Ill.  507 (1949).  Most cases which follow this approach involve statutory, constitutional or property rights of persons who have a direct interest in the subject matter of the "public hearing."
            Some courts have recognized that there should be a difference in the scope of the hearing when the subject matter of the hearing does not involve a constitutional, statutory or property right.  Silver Burdett Co. v. State Board of Education, 98 P.2d 533 (Cal., 1940), concerned a requirement of a "public hearing" before the state board of education adopted an approved list of textbooks.  The California District Court of Appeal indicated:
            ". . .  In the present case, the term 'public hearing' was not used with respect to a proceeding in which the constitutional rights of any person might be affected.  The subject before the board of education was the adoption of text books for use in the public schools and no question of the right of any person to life, liberty or property was involved.  For this reason, many of the authorities defining 'public hearing' cannot be considered in point.  The hearing here was one to be accorded by one administrative body, namely the board of education, to its purely advisory body, namely, the curriculum commission, and in our opinion the allegations showing that the commission had actually presented its report and recommendation at a public meeting of the board was equivalent to an allegation that the commission had been given the 'public hearing' required by the statute."
            City of Milwaukee v. Utech, 269 Wis. 132, 68 N.W.2d 719 (1955), involved the public hearing requirement prior to the adoption of a public improvement plan.  The Wisconsin Supreme Court indicated:
            ". . .  It is our conclusion that the public hearing specified by such section of the Kline Law is legislative in character rather than quasi-judicial.  Its manifest purpose is to assist the council in reaching a proper  [[Orig. Op. Page 5]] conclusion as to whether to adopt the plan as submitted by the board, or whether it should be revised and the form such revision should take, or whether to abandon the project altogether.  Inasmuch as such public hearing is legislative and not quasi-judicial in nature, it is entirely discretionary with the council, or its committee, as to what, if any, notice need be given of such hearing.  The only mandatory requirement of the statute is that the hearing be public, which means open to attendance by the general public."
            While it is not necessary to define the scope of the activity permitted by the public at the public hearing required by RCW 36.81.121, it is clear that the public has a right to attend such hearings.  The Ohio Court of Appeals in Schlagheck v. Winterfeld, 161 N.E.2d 498 (Ohio, 1958), declared:
            "The term, 'public hearing,' to be held by a legislative body connotes the opportunity for interested persons to appear and express their views pro and con regarding proposed legislative action.  . . ."
            The most recent discussion by our state supreme court concerning a public hearing was in Smith v. Skagit County, 75 Wn.2d 715, 453 P.2d 832 (1969).  The court commented on the statutory requirement of RCW 36.70.380 and 36.70.580 that the planning commission hold "at least one public hearing" as follows:
            ". . .  It is axiomatic that, whenever the law requires a hearing of any sort as a condition precedent to the power to proceed, it means a fair hearing, a hearing not only fair in substance, but fair in appearance as well.  A public hearing, if the public is entitled by law to participate, means then a fair and impartial hearing.  When applied to zoning, it means an opportunity for interested persons to appear and express their views regarding proposed zoning legislation.  Schlagheck v. Winterfeld, 108 Ohio App. 299, 161 N.E.2d 498 (1958); Braden v. Much, 403 Ill. 507, 87 N.E.2d 620 (1949).  The term 'public hearing' then presupposes that all matters upon which public notice has been given and on which public comment has been invited  [[Orig. Op. Page 6]] will be open to public discussion, and that persons present in response to the public notice will be afforded reasonable opportunity to present their views, consistent, of course, with the time and space available.  Where the law expressly gives the public a right to be heard‑-as distinguished from open sessions of the Congress or state legislatures or lesser legislative bodies which, although conducting their session in public, need not as a matter of law allow public participation‑-the public hearing must, to be valid, meet the test of fundamental fairness, for the right to be heard imports a reasonable expectation of being heeded.  Just as a hearing fair in appearance but unfair in substance is no fair hearing, so neither is a hearing fair in substance but appearing to be unfair.
            "Of course, the law affords many kinds and types of public hearings‑-each relevant to the work and purposes of the body or organ of government required to hold it.  The open hearings which most scrupulously and painstakingly afford due process of law are the trials or appeals on issues conducted by the judiciary on precisely framed issues.  Other kinds include hearings before administrative agencies, boards and commissions, hearings before officers of the executive branch, and legislative hearings.  In some of these the public may be present with no right to be heard, and in others the public has a right not only to be present but, additionally, to be heard and to influence the result.
            "Unlike a judicial hearing where issues of fact should be resolved from the evidence only without regard to the private views of the judges, a legislative hearing may reach a decision in part from the legislator's personal predilections or preconceptions.  Indeed, the election of legislators is often based on their announced views and attitudes on public questions.  But these distinctions do not obviate the basic requisite of fairness if the law prescribing the hearings invites the public not only to attend but gives it a right to be heard.
             [[Orig. Op. Page 7]]
            "The test of fairness, we think, in public hearings conducted by law on matters of public interest, vague though it may be, is whether a fair-minded person in attendance at all of the meetings on a given issue, could, at the conclusion thereof, in good conscience say that everyone had been heard who, in all fairness, should have been heard and that the legislative body required by law to hold the hearings gave reasonable faith and credit to all matters presented, according to the weight and force they were in reason entitled to receive.  . . .
            ". . . the statute calling for the hearing not only allowed the public to be present but members thereof to be heard‑-to present argument and evidence and to influence openly the planning commission and county commissioners in reaching a decision.
            ". . .
            "Unless prescribed by law, a public hearing of a legislative nature need not conform to technical rules of procedure or evidence (8A E. McQuillin, Municipal Corporations § 25.251 (3d ed., 1965 rev. vol.)), but common sense dictates that the hearing must be so conducted as to demonstrate that the relevant opinions of all persons invited to attend will be considered and weighed by the legislative body in the light of all other factors influencing their decision.  Otherwise, the call for a public hearing would be an exercise in futility‑-an empty ceremony conducted simply to provide evidence of mechanical compliance with the statute requiring the public hearing while concealing the purpose of evading it."

            In the foregoing statement by the court reference is made to a public notice of the proposed hearing.  It must be pointed out that the planning commission under the Planning Enabling Act is specifically required by RCW 36.70.390 to give notice of the time, place and purpose of the public hearing.  As we previously indicated, there is no such specific requirement for the public hearing relating to the formulation of the comprehensive road plan.  Nevertheless, the philosophy expressed by the supreme court in the Smith case, supra, leads us to the conclusion that a public body should make some reasonable effort to notify the public in advance of  [[Orig. Op. Page 8]] a public hearing.  Failure to give any notification would as a practical matter deprive the public of an opportunity to participate in the public hearing contemplated by the statute.
            We trust the foregoing adequately answers your inquiry.
Very truly yours,
Edward B. Mackie
Deputy Attorney General
                                                         ***   FOOTNOTES   ***
1/We are enclosing for your information AGO 53-55 No. 57 [[to the Governor on May 28, 1953]]; AGO 53-55 No. 157 [[to Bureau of Government Research and Services on Ocotber 29, 1953]]; AGO 53-55 No. 252 [[to Prosecuting Attorney, Thurston County on May 6, 1954]]and AGO 55-57 No. 6 [[to Bureau of Governmental Research and Services on January 5, 1955]], which have construed this question and also the subject of adjournments and recesses.