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Municipal Research News - Executive Session Update
Executive Session Update
There has been increased scrutiny by the Office of the State Auditor, the media, and the public, concerning the use of executive sessions by local government governing bodies. This makes it increasingly important for local government officials to understand the basics of executive sessions as addressed by the Open Public Meetings Act (OPMA). This article will answer some key questions about executive sessions authorized for local government governing bodies by the OPMA.
The OPMA, chapter 42.30 RCW, requires that all meetings of governing bodies be open and public and that all persons be permitted to attend except in situations specifically authorized by the OPMA. RCW 42.30.110 establishes procedures for executive sessions and provides a list of reasons for which a governing body may meet in executive session and close that portion of the meeting to the public.
May a governing body go into executive session even if it is not on the meeting agenda?
Yes. There is no requirement in the OPMA that an executive session be listed on the agenda in order for a governing body to meet in executive session. A decision may be made during the meeting to go into executive session, as long as the requirements concerning executive sessions in the OPMA are followed.
An executive session will always be held as part of a regular or special council meeting, but it is legal to hold a council meeting for the sole purpose of having an executive session.
Who may attend an executive session?
In most circumstances, the members of the governing body themselves are the only persons automatically entitled to attend an executive session – in a city or town, this means the mayor and councilmembers and in a county, the county commissioners or county councilmembers. No other persons, including other city or county staff or members of the public, may attend the executive session unless invited to attend by the governing body. As a general rule, persons other than members of the governing body should not attend an executive session unless their presence is necessary or helpful for the purpose for which the governing body is meeting in executive session.
The one exception to this general rule is that legal counsel for the agency must be present if the announced purpose of the executive session is to discuss litigation or potential litigation involving the agency. Legal counsel may be connected by speaker phone if this is allowed by the rules of procedure for the agency.
What are the proper procedures to call an executive session?
When legislation was introduced in 2008 that would have required tape recordings of all executive sessions, the Office of the State Auditor cited as support for this legislation a high number of violations of the OPMA by local governments. The vast majority of these violations were procedural mistakes, mainly concerning how the executive sessions were being announced by the presiding officer. The legislation was not enacted, but it did highlight the areas in which local governments should review their procedures for compliance with the OPMA.
The OPMA is very specific in its requirements as to how the presiding officer is to call an executive session. The presiding officer is to publicly announce the purpose of the executive session and the time the executive session will conclude. If the executive session runs longer than announced, the public must be informed of the anticipated length of the extension. If the executive session concludes in a shorter time than was announced to the public, the governing body should not resume the regular meeting until the announced time has elapsed.
MRSC recommends that the presiding officer cite the specific subsection of RCW 42.30.110(1), which authorizes executive sessions for specific purposes, and use the language from the statute itself to describe the purpose. For example, the presiding officer would announce before the executive session that the council is going into executive session as authorized by RCW 42.30.110(1)(f) to evaluate a charge against a public officer. It is not required to specify the exact nature of the charge or to identify the specific officer against whom the charge was made. (Note, however, that in this example the statute does require that, upon the request of the officer who is the subject of the charge, a public hearing or meeting be held to discuss the charge.)
The announcement of the executive session must be sufficiently specific to make clear that the purppose for the executive session is one that is authorized in state law. It is not sufficient to announce that the executive session is to discuss “personnel matters,” because only certain specific personnel matters are allowable topics for an executive session.
Must minutes be kept of executive sessions?
There is no statutory requirement that a governing body take minutes of an executive session or that an executive session be tape recorded. MRSC recommends that minutes not be taken of executive sessions because that will raise the possibility of a public records issue if the minutes are requested – there is no disclosure exemption in the Public Records Act for minutes of an executive session.
While minutes should not be taken of the discussion in the executive session itself, it is very important that the minutes of the regular meeting reflect that the proper procedures were followed when calling and announcing the purpose of the executive session. The minutes should also clearly reflect that legal counsel was present if the purpose of the executive session was to discuss litigation or potential litigation.
What can be done in executive session?
In general, discussion of the topic itself is all that is allowed in executive session. The governing body may not take a final vote in executive session. In fact, case law makes it clear that even straw votes or nonbinding votes may not be taken in executive session. The governing body must come out of executive session to vote.
What are the allowable purposes for an executive session?
The allowable purposes for executive sessions are listed in RCW 42.30.110(1). We will not list all the topics in this article, but they are addressed in detail in the publication listed below under “Additional Resources.” These are the only topics that may be discussed in executive session. If the discussion in the executive session moves off the announced topic to another issue, the presiding officer must bring the discussion back to the announced topic.
Actions not covered by the OPMA
There are a few types of meetings or actions of a local government governing body, identified in RCW 42.30.140, that are exempt from the OPMA entirely. The most important of these for local government purposes are those sessions related to collective bargaining, including portions of a meeting in which the governing body is planning or adopting the strategy or position to be taken during the course of any collective bargaining proceeding or in which it is reviewing the proposals made in negotiations that are in progress.
A governing body may meet in closed session for purposes that are exempt under the OPMA without public notice or announcement and without taking any minutes. Some jurisdictions treat these exempt discussions as executive sessions, which is certainly allowable, but they are actually entirely exempt from the provisions of the OPMA.
What are the consequences of meeting in executive session for a purpose not allowed in the OPMA?
If a city or county is sued by a citizen for holding an improper executive session and the citizen prevails, the city or county is liable for all costs, including attorney fees. Individual members of a governing body who attend an executive session while knowing it to be in violation of the OPMA are subject to personal liability in the amount of $100. In addition, the Office of the State Auditor may make a finding regarding an OPMA violation against the city or county in its regular audit.
Finally, one of the most significant consequences of holding an improper executive session is the loss of public trust resulting from a violation and the resulting publicity indicating that the governing body has limited the public’s legitimate right to know about local government operations.
Additional Resources
MRSC has a publication titled The Open Public Meetings Act: How It Applies to Washington Cities, Counties, and Special Purpose Districts, Report No. 60, May 2008. This publication is available online at http://www.mrsc.org/publications/opma08.pdf.
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