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Open Public Meetings Act

Open Public Meetings Act

September 1997 - Report No. 39

Contents


Foreword

Due to the large volume of inquiries that the Municipal Research & Services Center regularly receives concerning the Open Public Meetings Act, we have decided to produce a separate publication on this topic. This publication is intended for use by city, town, and county officials and employees and is presented in a style we hope will be easy to use and understand.

Special acknowledgment is given to Robert Meinig, MRSC Legal Consultant, who prepared this publication. Thanks are also due to Pam James, MRSC Legal Consultant, for her editing, and to Holly Martin, MRSC Desktop Publishing Specialist, for designing the format and preparing the document for publication.

Richard Yukubousky, Executive Director
Municipal Research and Services Center of Washington


Introduction

In 1971, the state legislature enacted the Open Public Meetings Act (the "Act") to make the conduct of government more accessible and open to the public. The Act begins with a strongly worded statement of purpose: [ RCW 42.30.010.]

    The legislature finds and declares that all public commissions, boards, councils, committees, subcommittees, departments, divisions, offices, and all other public agencies of this state and subdivisions thereof exist to aid in the conduct of the people's business. It is the intent of this chapter that their actions be taken openly and that their deliberations be conducted openly.

    The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created. [ Throughout this publication, quotations in bold type are statutory language.]

Codified in chapter 42.30 RCW, the Act applies to all city and town councils [ For convenience, the term "city council" will in this publication also refer to town councils and to city commissions under the commission form of government. There are currently three cities in the state governed by the commission form of government: Wenatchee, Raymond, and Shelton. ] and to all county councils and boards of county commissioners, as well as to some subordinate city and county commissions, boards, and committees. It requires, basically, that all "meetings" of such bodies be open to the public and that all "action" taken by such bodies be done at meetings that are open to the public. The terms "meetings" and "action" are defined broadly in the Act and, consequently, the Act can have daily significance for cities and counties, even when no formal meetings are being conducted.

This publication comprehensively reviews the Act as it applies to Washington cities, towns, and counties. It also provides answers to selected questions that have been asked of MRSC staff concerning application of the Act. However, we find that new questions constantly arise concerning the Act. So, if you have questions that are not addressed by this publication, do not hesitate to contact your city or town attorney, the county prosecuting attorney, or MRSC legal staff.


Who Is Subject to the Act?

    All meetings of the governing body of a public agency shall be open and public and all persons shall be permitted to attend any meeting of the governing body of a public agency, except as otherwise provided in this chapter. [ RCW 42.30.030.]

This is the basic mandate of the Open Public Meetings Act. The Act applies to "meetings" of a "governing body" of a "public agency." A "public agency" includes a city and county. [ RCW 42.30.020(1)(b).] A "governing body" is defined in the Act as follows:

    "Governing body" means the multimember board, commission, committee, council, or other policy or rule-making body of a public agency, or any committee thereof when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment.

The legislative bodies of cities and counties [ The legislative bodies of cities are the city council or city commission, and the legislative bodies of counties are the board of county commissioners or county council.] clearly are governing bodies under this definition. However, they are not the only governing bodies to which the Act applies. The Act also applies to any "subagency" of a city or county, because the definition of "public agency" includes:

    Any subagency of a public agency which is created by or pursuant to statute, ordinance, or other legislative act, including but not limited to planning commissions, library or park boards, commissions, and agencies. [ RCW 42.30.020(1)(c).]

Under this definition, the subagency must be created by some legislative act of the legislative body, such as an ordinance or resolution. A group established by a mayor to advise him or her could not, for example, be a subagency. However, a legislative act alone does not create a subagency. According to the attorney general's office, a board or a commission or other body is not a subagency governed by the Act

    unless it possesses some aspect of policy or rulemaking authority. In other words, its "advice," while not binding upon the agency with which it relates . . . , must nevertheless be legally a necessary antecedent to that agency's action. [ AGO 1971 No. 33, at 9. The attorney general's office bases its conclusion on this issue on the language "or other policy or rulemaking body of a public agency" in the definition of "governing body" in RCW 42.30.020(2), quoted above. See also AGLO 1972 No. 48.]

If a board or committee (or whatever it may be termed) is merely advisory and its advice is not necessary for the city or county to act, the Act does not apply to it.

Given the above definitions, the following are governing bodies within city and county government that are subject to the Act:

  • City council or commission
  • County council or board of commissioners
  • Planning commission
  • Civil service commission
  • Board of adjustment

Other boards or commissions will need to be evaluated individually to determine whether the Act applies to them. For example, the definition of a subagency identifies library boards, but, in some cities (particularly those without their own libraries), library boards function as purely advisory bodies, without any policy- or rulemaking authority. That type of a library board would not be subject to the Act. In cities where library boards function under statutory authority [ RCW 27.12.210.] and possess policy and rulemaking authority, those boards must follow the requirements of the Act.

In some circumstances, the Act may apply to a committee of a governing body. As a practical matter, city or county legislative bodies are usually the only governing bodies with committees to which the Act may apply. A committee of a city or county legislative body will be subject to the Act in the following circumstances:

  • when it acts on behalf of the legislative body [ According to the attorney general's office, a committee acts on behalf of the governing body "when it exercises actual or de facto decisionmaking power." AGO 1986 No. 16, at 12. ]
  • when it conducts hearings, or
  • when it takes testimony or public comment.

When a committee is not doing any of the above, it is not subject to the Act.

Keep in mind that it is usually good public policy to open the meetings of city and county bodies to the public, even if it is uncertain or doubtful that the Act applies to them. Secrecy is rarely warranted, and the Act's procedural requirements are not onerous. This approach would be consistent with the Act's basic intent that the actions of governmental bodies "be taken openly and that their deliberations be conducted openly." [ RCW 42.30.010.]

Questions

May four councilmembers-elect meet before taking their oaths of office without procedurally complying with the Act?

Technically speaking, since the councilmembers-elect are not yet members of the governing body, they are not subject to the Act. However, such a meeting would appear to violate the spirit of the Act.

Must a committee of the governing body be composed solely of members of the governing body for it to be subject to the Act under the circumstances identified in RCW 42.30.020(2)?

This statute defines a "governing body" to include a "committee thereof when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment." (Emphasis added.) Does a "committee thereof" include only members of the governing body? This question has not been addressed by the courts, but the attorney general's office, in AGO 1986 No. 16, did address this question. After reviewing the policy of the Act and the legislative history of this statute, the attorney general's office opined that a "committee thereof" may include individuals who are not members of the governing body when they are appointed by the governing body.


What Is a "Meeting"?

There must be a "meeting" of a governing body for the Act to apply. Sometimes it is very clear that a "meeting" is being held that must be open to the public, but other times it isn't. To determine whether a governing body is having a "meeting" that must be open, it is necessary to look at the Act's definitions. The Act defines "meeting" as follows: "Meeting" means meetings at which action is taken. [ RCW 42.30.020(4).] That definition, however, is not helpful without a definition of "action," and that definition is:

    "Action" means the transaction of the official business of a public agency by a governing body including but not limited to receipt of public testimony, deliberations, discussions, considerations, reviews, evaluations, and final actions. "Final action" means a collective positive or negative decision, or an actual vote by a majority of the members of a governing body when sitting as a body or entity, upon a motion, proposal, resolution, order, or ordinance. [ RCW 42.30.020(3).]

Since a governing body can transact business when a quorum (majority) of its members are present, [ See, e.g., RCW 35A.12.120; 35.23.270; 35.27.280; 36.32.010.] it is conducting a meeting subject to the requirements of the Open Public Meetings Act whenever a majority of its members meet together and deal in any way with city or county business, as the case may be. This includes simply discussing some matter having to do with city or county business. Note that it does not matter if it is called a "workshop," a "study session," or a "retreat;" it is still a meeting if a quorum is addressing the business of the city or county. If a governing body just meets socially or travels together, it is not having a meeting subject to the Act as long as the members do not discuss city or county business. [ RCW 42.30.070.]

Questions

If a majority or more of the members of a governing body discuss city or county business by telephone, are they having a meeting subject to the Act?

Since the members of a governing body can discuss city or county business together by telephone so as to be taking "action" within the above definition, the governing body is having a meeting subject to the Act when one or more of its members are communicating by telephone and a quorum of its members are communicating together. This type of meeting could take many forms, such as aconference call among a majority or more of the governing body, or where less than a majority is physically meeting together and other members are connected by conference call and the total number discussing city or county business represents a quorum. Since the public could not, as a practical matter, attend this type of "meeting," it would be held in violation of the Act.

Given the increasingly prevalent use of e-mail, the same considerations that apply to discussions by telephone may apply to discussions by e-mail. However, the law has yet to catch up with technology and it is not clear at present how the Act will apply, if at all, to electronic communications.

May one or more members of a governing body "attend" a meeting by telephone?

Although no courts in this state have addressed this question, it probably would be permissible for a member of a governing body to "attend" a meeting by telephone, if that member's voice could be heard by all present, including the public, and if that member could hear all that is stated at the meeting. Some sort of speaker phone equipment would, obviously, be necessary for this to occur. The governing body could, however, determine in its rules whether a meeting would be permissible where one or more members might attend by speaker phone.

May a quorum of a city or county legislative body attend, as members of the audience, a citizens' group meeting?

Yes, provided that the councilmembers attending the meeting do not discuss, as a group, city or county business. That possibility could be avoided by not sitting as a group.

May an entire county council attend a private dinner in honor of the out-going county official without complying with the Open Public Meetings Act?

Again, the issue comes down to whether the council will be dealing with county business. It can be argued that honoring the county official is itself county business. On the other hand, it could be argued that honoring an individual who is leaving county employment does not involve the functioning of the county. This is a gray area where caution should be exercised.

Must the public be allowed to attend the annual city council retreat?

Yes. A retreat attended by a quorum of the council where issues of city business are addressed constitutes a meeting.

May one member of a legislative body call the other members individually to determine how they would vote on a matter?

This kind of telephone polling would violate the spirit and perhaps the letter of the Act. It is likely that this would be considered to be taking action, as that term is defined in RCW 42.30.020(3).


What Procedural Requirements Apply to Meetings?

The Act establishes some basic procedural requirements that apply to all meetings of a governing body, whether they are regular or special meetings. All meetings of a governing body are, under the Open Public Meetings Act, either regular or special meetings. It does not matter if it is called a "study session" or a "workshop" or a "retreat," it is either a regular or special meeting.

What is a regular meeting?

A regular meeting is one that is held according to a schedule adopted by ordinance, resolution, order, or rule, as may be appropriate for the governing body. [ See RCW 42.30.060, .070, .080.] For second class city councils and town councils, the schedule of regular meetings must be adopted by ordinance. [ RCW 35.23.181; 35.27.270.] State law requires that second class and code city councils and town councils meet at least once a month. [ RCW 35.23.181; 35.27.270; 35A.12.110; 35A.13.170. This is one of the instances where the requirements of the Open Public Meetings Act are supplemented by the statutes applicable to a particular class of city. However, there are no statutory requirements that apply specifically to regular meetings of first class city councils or to county legislative bodies.]

What is a special meeting?

A special meeting is any meeting that is not a regular meeting. In other words, special meetings are not held according to a fixed schedule. Under the Act, special meetings have specific notice requirements, as discussed below. Also, the councils of certain classes of cities may be subject to specific limitations about what may be done at a special meeting. [ Second class city councils may not pass an ordinance or approve a contract or a bill for the payment of money at a special meeting. RCW 35.23.181. Town councils may not pass a resolution or order for the payment of money at a special meeting. RCW 35.27.270. The councils of first class and code cities and county legislative bodies have no specific limitations on actions that may be taken at a special meeting, other than those imposed by the Open Public Meetings Act.]

What procedural requirements apply to all meetings of a governing body?

The following requirements and prohibitions apply to both regular and special meetings of a governing body:

  • All meetings must be open to the public. [ RCW 42.30.030.]

  • A member of the public may not be required as a condition of attendance to register his or her name or other information, or complete a questionnaire, or be required to fulfill any other condition precedent to attendance. [ RCW 42.30.040.]

  • The governing body may require the removal of members of the public who disrupt the orderly conduct of a meeting. If order cannot be restored by removal of individuals, the governing body may order the meeting room cleared and may continue in session or it may adjourn and reconvene the meeting at another location, subject to the limitations in RCW 42.30.050. [ That statute provides in relevant part as follows: In such a session, final disposition may be taken only on matters appearing on the agenda. Representatives of the press or other news media, except those participating in the disturbance, shall be allowed to attend any session held pursuant to this section. Nothing in this section shall prohibit the governing body from establishing a procedure for readmitting an individual or individuals not responsible for disturbing the orderly conduct of the meeting.]

  • Votes may not be taken by secret ballot. [ RCW 42.30.060(2). Any vote taken by secret ballot is null and void.]

  • Meetings may be adjourned or continued subject to the procedures in RCW 42.30.090, as discussed below.

  • The governing body may meet in executive (closed) session, but only for one of the reasons specified in and in accordance with the procedures identified in RCW 42.30.110. See discussion on executive sessions.

Although the Act gives the public the right to attend meetings, the public has no statutory right to speak at meetings. As a practical and policy matter, however, city and county legislative bodies generally provide the public some opportunity to speak at meetings.

The Open Public Meetings Act does not require that a city or county legislative body or other governing body hold its meetings within the city or in a particular place in the county. However, other statutes provide that the councils of code cities, second class cities, and towns may take final actions on ordinances and resolutions only at a meeting within the city or town. [ RCW 35.23.181; 35.27.270; 35A.12.110. Although meetings need not necessarily be held within a city, when a governing body decides to hold one outside the city, it should not site the meeting at a place so far from the city as to effectively prevent the public from attending.] Also, county legislative bodies must hold their regular meetings at the county seat, [ RCW 36.32.080.] but may hold special meetings in the county outside of the county seat if there are agenda items that "are of unique interest or concern" to the residents of the area of the county in which the meetings are held. [ RCW 36.32.090.]

What procedural requirements apply specifically to regular meetings?

  • The date and time of regular meetings must be established by ordinance, resolution, order, or rule, as may be required for the particular governing body. [ The Act does not directly address designating(in the ordinance, resolution, order, or rule designating the date and time of regular meetings) the place at which regular meetings will be held. RCW 42.30.070. However, the statutes governing the particular classes of cities, except those governing first class cities, require designation of the site of regular council meetings. RCW 35A.12.110; 35.23.181; 35.27.270. The county statutes do not address designating the site of regular meetings. As a practical matter, counties and first class cities should also designate the site of regular meetings along with the designation of the date and time of those meetings.]

  • If the regular meeting date falls on a holiday, the meeting must be held on the next business day. [ RCW 42.30.070.]

What procedural requirements apply specifically to special meetings?

The procedural requirements that apply to special meetings deal primarily with the notice that must be provided. These requirements, contained in RCW 42.30.080, are as follows:

  • A special meeting may be called by the presiding officer or by a majority of the members of the governing body. [ There is a conflict between the provision in RCW 42.30.080 authorizing a majority of the members of a governing body to call a special meeting and the provision for code cities in RCW 35A.12.110 authorizing three members of the city council to call a special meeting. This conflict occurs only with respect to a code city with a seven-member council, because three members is less than a majority. Since RCW 42.30.140 provides that the provisions of the Act will control in case of a conflict between it and another statute, four members of a seven-member code city council, not three, are needed to call a special meeting.]

  • Written notice must be delivered personally or by mail at least 24 hours before the time of the special meeting to:

    • each member of the governing body, and to

    • each local newspaper of general circulation and each local radio or television station that has on file with the governing body a written request to be notified of that special meeting or of all special meetings. [ Note that the Act does not require any notice directly to the public. Also, for whatever reason, there may be no media with a request on file to be notified of special meetings. This does not mean, however, that the governing body need not notify the public in some way about an upcoming meeting. Statutes relating to each class of city require that cities: establish a procedure for notifying the public of upcoming hearings and the preliminary agenda for the forthcoming council meeting. Such procedure may include, but not be limited to, written notification to the city's official newspaper, publication of a notice in the official newspaper, posting of upcoming council meeting agendas, or such other processes as the city determines will satisfy the intent of this requirement. RCW 35A.12.160; 35.22.288; 35.23.221; 35.27.300. There is no similar statute that applies to counties. Nevertheless, counties should have procedures for notifying the public of meetings.]

  • The notice must specify:

    • the time and place of the special meeting, and
    • the business to be transacted at the special meeting.

  • The governing body may take final action only concerning matters identified in the notice of the meeting. [ Thus, this does not prevent a governing body from discussing or otherwise taking less than final action with respect to a matter not identified in the notice.]

  • Written notice to a member or members of the governing body is not required when:

    • a member files at or prior to the meeting a written waiver of notice or provides a waiver by telegram; or

    • the member is present at the meeting at the time it convenes. [ Of course, it may not be known in advance that a member who did not receive written notice will be at the meeting. This is just basically a way of saying that failure to provide written notice is excused in this circumstance. Obviously, the member who attends the meeting must have received some kind of notice.]

  • Special meeting notice requirements may be dispensed with when a special meeting is called to deal with an emergency involving injury or damage to persons or property or the likelihood of such injury or damage, when the time requirements of the notice would make notice impractical and increase the likelihood of such injury or damage.

What procedural requirements apply to adjournments of regular or special meetings?

A regular or special meeting may be adjourned to a specified time and place, where it will be continued. There are a number of circumstances under which a meeting might be adjourned. A meeting may be adjourned and continued to a later date because the governing body did not complete its business. The Act, in RCW 42.30.090, addresses two other circumstances under which a meeting may be adjourned and continued at a later date:

  • When the governing body does not achieve a quorum. In that circumstance, less than a quorum may adjourn a meeting to a specified time and place; or

  • When all members are absent from a regular meeting or an adjourned regular meeting. In that instance, the clerk of the governing body may adjourn the meeting to a stated time and place, with notice provided as required for a special meeting, unless notice is waived as provided for special meetings. However, the resulting meeting is still considered a regular meeting.

Notice of an adjourned meeting is to be provided as follows:

  • An order or notice of adjournment, specifying the time and place of the meeting to be continued, must be "conspicuously posted" immediately following adjournment on or near the door of the place where the meeting was held.

  • Notice of a regular meeting adjourned by the clerk when all members of the governing body are absent must be provided in the same manner as for special meetings.

  • If the notice or order of an adjourned meeting fails to state the hour at which the adjourned meeting is to be held, it must be held at the hour specified for regular meetings by ordinance, resolution, or other rule.

    If the governing body is holding a hearing, the hearing may be continued at a later date by following the same procedures for adjournment of meetings. [ RCW 42.30.100.]

    Questions

    Must a city or county provide published notice of a special meeting?

    No, not under the Open Public Meetings Act. While notice must be provided to media that have on file a request to be notified of special meetings, this is not equivalent to a publishing requirement. Nevertheless, if the governing body has adopted a requirement of published notice for special meetings, that requirement must be followed.

    May notice to the media of a special meeting be provided by fax?

    Technically, this would not comply with the requirement in RCW 42.30.080 that such notice be mailed or delivered personally. Practically speaking, faxed notice appears to comply readily with the objective of this statute. Nevertheless, unless a city or county has a written agreement with the newspaper or radio or television station that faxed notice is acceptable, it should not provide its notice of special meetings by fax. Perhaps sometime soon state law will catch up with technology.

    May a governing body prohibit a member of the public from tape recording or videotaping a meeting?

    No, the there is no legal basis for prohibiting the taping of a meeting, unless the taping disrupts the meeting. If the governing body enacted such a rule, it essentially would be conditioning attendance at a meeting on not recording the meeting. This would be contrary to RCW 42.30.040, which prohibits a governing body from imposing any condition on attending a public meeting.

    How can a majority of the governing body agree outside of a formal meeting to call a special meeting without violating the Act?

    Since a majority of the governing body, under RCW 42.30.080, may call a special meeting "at any time," it would indeed be an anomaly if, in calling for that meeting, the majority would be considered to have violated the Act. In our opinion, the only way to give effect to this statutory provision is to allow a majority to get together in some way (e.g., by phone, e-mail, in person, or through the clerk's office) to decide whether to have a special meeting, when to have it, and what matters it will deal with. The members could not discuss anything else, such as the substance of the matters to be discussed at the special meeting.


    When May a Governing Body Hold an Executive Session?

    What is an executive session?

    "Executive session" is not expressly defined in the Open Public Meetings Act, but the term is commonly understood to mean that part of a regular or special meeting of a governing body that is closed to the public. A governing body may hold an executive session only for specified purposes, which are identified in RCW 42.23.110(1)(a)-(k), and only during a regular or special meeting. Nothing, however, prevents a governing body from holding a meeting, which complies with the Act's procedural requirements, for the sole purpose of having an executive session.

    A governing body should always follow the basic rule that it may not take final action in an executive session. However, there may be circumstances, as discussed below, where the governing body will need to reach a consensus concerning the matter being considered in closed session.

    Who may attend an executive session?

    Attendance at an executive session need not be limited to the members of the governing body. Persons other than the members of the governing body may attend the executive session at the invitation of that body. [ When the governing body is meeting in executive session to discuss litigation or potential litigation, legal counsel must be present and take part in the discussion. RCW 42.30.110(1)(i).] Those invited should have some relationship to the matter being addressed in the closed session, or they should be attending to otherwise provide assistance to the governing body. For example, staff of the governing body or of the governmental entity may be needed to present information or to take notes or minutes. However, minutes are not required to be taken at an executive session. [ See RCW 42.32.030.]

    What procedures must be followed to hold an executive session?

    Before a governing body may convene in executive session, the presiding officer must publicly announce the executive session to those attending the meeting by stating two things:

    • the purpose of the executive session, and
    • the time when the executive session will end.

    The announced purpose of the executive session must be one of the statutorily-identified purposes for which an executive session may be held. The announcement must contain enough detail to identify the purpose as falling within one of those identified in RCW 42.30.110(1).

    If the executive session is not over at the stated time, it may be extended only if the presiding officer announces to the public at the meeting place that it will be extended to a stated time. If the governing body concludes the executive session before the time that was stated it would conclude, it should not reconvene in open session until the time stated. Otherwise, the public may, in effect, be excluded from that part of the open meeting that occurs between the close of the executive session and the time that was announced for the conclusion of the executive session.

    What are the allowed purposes for holding an executive session?

    An executive session may be held only for one or more of the purposes identified in RCW 42.30.110(1). The purposes addressed below are those which have application to cities and counties. A governing body of a city or county may meet in executive session for the following reasons:

    • To consider the selection of a site or the acquisition of real estate by lease or purchase when public knowledge regarding such consideration would cause a likelihood of increased price; [ RCW 42.30.110(1)(b).]

      This provision has two elements:

      • the governing body must be considering either purchasing or leasing real property; and
      • public knowledge of the governing body's consideration would likely cause an increase in the price of the real property.

      The consideration of the purchase of real property under this provision can involve condemnation of the property, including the amount of compensation to be offered for the property. [ Port of Seattle v. Rio , 16 Wn. App. 718 (1977).]

      Since this provision recognizes that the process of purchasing or leasing real property or selecting real property to purchase or lease may justify an executive session, it implies that the governing body may need to reach some consensus in closed session as to the price to be offered or the particular property to be selected. [ See Port of Seattle v. Rio , supra at 723-25.] The purpose of allowing this type of consideration in an executive session would be defeated by requiring a vote in open session to select the property or to decide how much to pay for the property, where public knowledge of these matters would likely increase its price.

    • To consider the minimum price at which real estate will be offered for sale or lease when public knowledge regarding such consideration would cause a likelihood of decreased price. However, final action selling or leasing public property shall be taken in a meeting open to the public; [ RCW 42.30.110(1)(c).]

      This subsection, the reverse of the previous one, also has two elements:

      • the governing body must be considering the minimum price at which real property belonging to the city or county will be offered for sale or lease; and
      • public knowledge of the governing body's consideration will likely cause a decrease in the price of the property.

      The requirement here of taking final action selling or leasing the property in open session may seem unnecessary, since all final actions must be taken in a meeting open to the public. However, its probable purpose is to indicate that, although the decision to sell or lease the property must be made in open session, the governing body may decide in executive session the minimum price at which it will do so. A contrary interpretation would defeat the purpose of this subsection.

      If there would be no likelihood of a change in price if these real property matters are considered in open session, then a governing body should not meet in executive session to consider them.

    • To review negotiations on the performance of publicly bid contracts when public knowledge regarding such consideration would cause a likelihood of increased costs; [ RCW 42.30.110(1)(d).]

      This subsection indicates that when a city or county and a contractor performing a publicly bid contract are negotiating over contract performance, the governing body may "review" those negotiations in executive session if public knowledge of the review would likely cause an increase in contract costs. MRSC is not aware of an executive session being held under this provision. It is not clear what circumstances would result in a city or county governing body meeting in executive session under this provision.

    • To receive and evaluate complaints or charges brought against a public officer or employee. However, upon the request of such officer or employee, a public hearing or a meeting open to the public shall be conducted upon such complaint or charge; [ RCW 42.30.110(1)(f).]

      For purposes of meeting in executive session under this provision, a "charge" or "complaint" must have been brought against a city or county officer or employee. The complaint or charge could come from within the city or county or from the public, and it need not be aformal charge or complaint. The bringing of the complaint or charge triggers the opportunity of the officer or employee to request that the discussion be held in open session.

      As a general rule, city governing bodies that are subject to the Act do not deal with individual personnel matters. [ The civil service commission is an obvious exception. It, however, addresses personnel actions taken against a covered officer or employee, and it does so in the context of a formal hearing.] For example, the city council should not be involved in individual personnel decisions, as these are within the purview of the administrative branch under the authority of the mayor or city manager. [ An exception is where the council, in a council-manager city, may be considering a complaint or charge against the city manager.] This provision for holding an executive session should not be used as a justification for becoming involved in personnel matters which a governing body may have no authority to address.

    • To evaluate the qualifications of an applicant for public employment or to review the performance of a public employee. However, subject to RCW 42.30.140(4), discussion by a governing body of salaries, wages, and other conditions of employment to be generally applied within the agency shall occur in a meeting open to the public, and when a governing body elects to take final action hiring, setting the salary of an individual employee or class of employees, or discharging or disciplining an employee, that action shall be taken in a meeting open to the public; [ RCW 42.30.110(1)(g).]

      There are two different purposes under this provision for which a governing body may meet in executive session. For both purposes, the references to "public employment" and to "public employee" include within their scope public offices and public officials. This means that a governing body may evaluate in executive sessions persons who apply for appointive office positions, such as city manager, as well as those who apply for employee positions. [ The courts have, for various purposes, distinguished between a public "office" and a public "employment." See, e.g., Oceanographic Comm'n v. O'Brien , 74 Wn.2d 904, 910-12 (1968); State ex rel. Hamblen v. Yelle , 29 Wn.2d 68, 79- 80 (1947); State ex rel. Brown v. Blew , 20 Wn.2d 47, 50-52 (1944). A test used to distinguish between the two is set out in Blew , 20 Wn.2d at 51.]

      The first purpose involves evaluating the qualifications of applicants for public employment. This could include personal interviews with an applicant, discussions concerning an applicant's qualifications for a position, and discussions concerning salaries, wages, and other conditions of employment personal to the applicant. As with the previous executive session provision, this purpose is not one that generally will have application to a governing body in a city, because city governing bodies do not, as a general rule, have any hiring authority. [ One obvious exception is the city council in a council-manager city, who hires the city manager. RCW 35A.13.010; RCW 35.18.010.]

      This authority to "evaluate" applicants in closed session allows a governing body to discuss the qualifications of applicants, not to choose which one to hire (to the extent the governing body has any hiring authority). However, since this subsection expressly mandates that "final action hiring" an applicant for employment be taken in open session, the implication is that a governing body may take something less than final action in executive session to eliminate applicants or to choose applicants for further consideration.

      The second part of this provision concerns reviewing the performance of a public employee. Typically this is done where the governing body is considering a promotion or a salary or wage increase for an individual employee or where it may be considering disciplinary action. [ As with hiring, a city council has little or no authority regarding discipline of public officers or employees. Again, an exception would be a city manager over which the council has removal authority. RCW 35A.13.130; 35.18.120.]

      The result of a governing body's closed session review of the performance of an employee may be that the body will take some action either beneficial or adverse to the officer or employee. That action, whether raising a salary of or disciplining an officer or employee, must be made in open session.

      Any discussion involving salaries, wages, or conditions of employment to be "generally applied" in the city or county must take place in open session. However, discussions that involve collective bargaining negotiations or strategies are not subject to the Open Public Meetings Act and may be held in closed session without being subject to the procedural requirements for an executive session. [ See RCW 42.30.140(4).]

    • To evaluate the qualifications of a candidate for appointment to elective office. However, any interview of such candidate and final action appointing a candidate to elective office shall be in a meeting open to the public; [ RCW 42.30.110(1)(h).]

      This provision applies to a city or county legislative body only when it is filling a vacant elective position. Under this provision, the legislative body may meet in executive session to evaluate the qualifications of applicants for the vacant position. However, any interviews with the candidates must be held in open session. As with all other appointments, the vote to fill the position must also be in open session.

    • To discuss with legal counsel representing the agency matters relating to agency enforcement actions, or to discuss with legal counsel representing the agency litigation or potential litigation to which the agency, the governing body, or a member acting in an official capacity is, or is likely to become, a party, when public knowledge regarding the discussion is likely to result in an adverse legal or financial consequence to the agency. [ RCW 42.30.110(1)(i).]

      Three basic requirements must be met before this provision can be used by a governing body to meet in closed session: [ This provision for holding an executive session is based on the legislative recognition that the attorney-client privilege between a public agency governing body and its legal counsel can co-exist with the Open Public Meetings Act. See Final Legislative Report, Forty-Ninth Legislature, 1985 Regular and 1st Special Sessions , at 270-71; see also Port of Seattle v. Rio , 16 Wn. App.718, 724-25 (1977); AGO 1971 No. 33, at 20-23. However, that privilege is not necessarily as broad as it may be between a private party and legal counsel.]

      • The city or prosecuting attorney or special legal counsel representing the city or county governing body must attend the executive session to discuss the enforcement action or the litigation or potential litigation;

      • The discussion with legal counsel must concern either an enforcement action or litigation or potential litigation to which the city or county, a governing body, or one of its members is or is likely to become a party; and

      • Public knowledge of the discussion would likely result in adverse legal or financial consequence to the city or county.

      The potential litigation issue. Application of this provision to discussions of "potential" litigation is an unsettled area subject to a range of interpretations. A narrow interpretation is that the discussion must actually involve the potential litigation. For example, a board of county commissioners could meet in closed session to discuss whether the county itself may want to initiate a lawsuit or to discuss a possible response to a suit that will likely be brought against the county. Under this interpretation, simply discussing a controversial action it is proposing to take for which it may be sued does not mean the board is discussing potential litigation.

      A broader interpretation of the potential litigation provision is that it encompasses discussions by the governing body about matters that involve a genuine legal risk to the city or county. Under this interpretation, the likelihood that a city or county may be sued for taking a certain action would allow a city council or a board of county commissioners or county council to discuss with its legal counsel in executive session the legal risks of that action. Discussion of such risks in closed session would permit that body to freely consider the legal implications of a proposed decision without the attendant concern that it might be jeopardizing some future litigation position. [ As a practical matter, however, governing bodies could in many situations avoid this issue entirely by directing its legal counsel to evaluate the legal implications of a proposed action in a written memorandum.] This interpretation is more consistent with the evident intent of this provision to protect the attorney-client privilege.

      Ultimately, the scope of the potential litigation provision will need to be clarified by the legislature or interpreted by the courts. [ One approach to interpreting the potential litigation provision is to use an analogy to the public disclosure law cases concerning the disclosure exemption in RCW 42.17.310(1)(j) for records relevant to a "controversy" that would not be available under the rules governing pretrial discovery. In Dawson v. Daly , 120 Wn.2d 782, 791 (1993), the state supreme court interpreted this exemption as intended to protect attorney work product and the attorney-client privilege relating to a controversy, which the court defined as "completed, existing, or reasonably anticipated litigation." See also Overlake Fund v. Bellevue , 60 Wn. App. 787, 795-96 (1991). ]

      The probability of adverse consequence to the city or county. It is probable that public knowledge of most governing body discussions of existing litigation would result in adverse legal or financial consequence to the city or county. Knowledge by one party of the communications between the opposing party and its attorney concerning a lawsuit will almost certainly give the former an advantage over the latter. The same probably can be said of most discussions that qualify as involving potential litigation.

      Again, no final action in executive session. The purpose of this executive session provision is to allow the governing body to discuss litigation or enforcement matters with legal counsel; the governing body is not authorized to take final action regarding such matters in an executive session. Nevertheless, a governing body will likely need to make certain strategic decisions in executive session to advance the litigation or enforcement action, while protecting the secrecy of such decisions. For example, a county council can probably take an informal vote or reach a consensus in executive session to authorize the county prosecuting attorney to settle a case for no higher than a certain amount. However, it is clear that the council's vote to give final approval to a settlement agreement must occur in an open meeting.

    Questions

    May the mayor call an executive session to discuss "personnel matters"?

    No, this would not be a legally sufficient reason to hold an executive session. The purpose for holding an executive session must be within those specifically identified in RCW 42.30.110(1). Although there are personnel issues that may be addressed in an executive session under this statute, such as complaints or charges against an employee or an employee's performance, "personnel matters" is too broad a purpose and could include purposes not authorized by the statute.

    May an undercover police officer brief the council in executive session on drug problems within the city?

    Although the undercover nature of the police officer's work would clearly warrant secrecy, the briefing could not occur in executive session. There is no provision in the executive session statute, RCW 42.30.110(1), for an executive session to be held for this purpose. One solution would be for the officer to brief less than a quorum of the council in private.

    May a city council meet in executive session to ask the mayor to resign?

    No. Although the council could meet in executive session to discuss complaints or charges against the mayor, the council should take the action of asking for the mayor's resignation in open session. (Of course, a mayor is not legally bound by the council's wishes.)

    May the board of county commissioners meet in executive session to discuss raising the salaries of all department heads?

    Yes. RCW 42.30.110(1)(g) requires that discussions of salaries to be "generally applied" within the county occur in open session and also that the setting of the salary of an individual employee or class of employees be in open session. By clear implication, the board may meet in executive session to discuss setting the salary for a class of employees, such as department heads, or for an individual employee. The actual setting of any salary must, however, be in open session.

    May the county council meet in executive session at a special meeting if the notice of the special meeting did not identify that an executive session would be held?

    Yes. The prohibition in RCW 42.30.080 on taking final disposition on any matter not identified in the special meeting notice does not apply to holding an executive session, because that does not involve final disposition on any matter. The council is already prohibited from taking final action in an executive session. Nevertheless, from a policy standpoint, the notice should identify the executive session if the council knows at the time of giving the notice that it will be meeting in executive session at the special meeting.

    If three members of a seven-member city council interview candidates for a council vacancy, must those interviews be open to the public?

    Yes. Although they do not represent a quorum of the council, the three councilmembers would be acting on behalf of the entire council in conducting these interviews. As such, they would a "governing body" subject to the Act. Since interviews by a governing body of candidates for appointment to elective office must occur in an open meeting (RCW 42.30.110(1)(h)), this three-member committee may not meet in executive session for the purpose of interviewing the candidates.


    What Meetings Are Exempt from the Act?

    RCW 42.30.140 sets out four situations where a governing body may meet and not be subject to any requirements of the Open Public Meetings Act. That statute provides that the Act does not apply to:

    • The proceedings concerned with the formal issuance of an order granting, suspending, revoking, or denying any license, permit, or certificate to engage in any business, occupation, or profession or to any disciplinary proceedings involving a member of such business, occupation, or profession, or to receive a license for a sports activity or to operate any mechanical device or motor vehicle where a license or registration is necessary;

      This provision, for the most part, has no application to any city or county governing body. One type of proceeding where it has been used is where a city provides for a hearing before revoking a business license. [ See Cohen v. Everett City Council , 85 Wn.2d 385, 386 (1975).]

    • That portion of a meeting of a quasi-judicial body which relates to a quasi-judicial matter between named parties as distinguished from a matter having general effect on the public or on a class or group;

      This exception applies when a governing body is acting in a quasi-judicial capacity. [ The courts have employed a four-part test to determine whether a matter qualifies under the quasi - judicial action exemption from the Open Public Meetings Act (RCW 42.30.140(2)): (1) whether the action is one a court could have been charged to determine; (2) whether it is one historically performed by courts: (3) whether it involves the application of existing law to past or present facts for purposes of enforcing or declaring liability; and (4) whether it resembles the ordinary business of courts more than that of legislators or administrators. Protect the Peninsula's Future v. Clallam Cy. , 66 Wn. App. 671 (1992), rev. denied , 121 Wn.2d 1011 (1993). See also, RCW 42.36.010 (definition of quasi-judicial land use actions, for purposes of the appearance of fairness doctrine); The Appearance of Fairness Doctrine in Washington State , MRSC Report No. 32 (January 1995), at 6-8 (discussion of quasi-judicial land use actions). ] Typically, a city or county governing body is acting in a quasi-judicial capacity in certain land use actions such as site-specific rezones, conditional use applications, variances, and preliminary plat applications. Other examples include the civil service commission when it is considering an appeal of a disciplinary decision and the LEOFF disability board when it is considering an application for disability benefits. However, where a public hearing is required for a quasi-judicial matter, only the deliberations by the body considering the matter could be in closed session.

    • Matters governed by chapter 34.05 RCW, the Administrative Procedure Act;

      This exception has no application to cities or counties.

    • Collective bargaining sessions with employee organizations, including contract negotiations, grievance meetings, and discussions relating to the interpretation or application of a labor agreement; or (b) that portion of a meeting during which the governing body is planning or adopting the strategy or position to be taken by the governing body during the course of any collective bargaining, professional negotiations, or grievance or mediation proceedings, or reviewing the proposals made in the negotiations or proceedings while in progress.

      The language of this exception is basically self-explanatory.

    Questions

    Does the Open Public Meetings Act require that a civil service commission hearing regarding a police officer's appeal of disciplinary action be open to the public?

    No, because such a hearing would fall under the exception from the Act in RCW 42.30.140(2) for quasi-judicial matters. However, RCW 41.12.090 requires that such a hearing be a public one. The commission may nevertheless deliberate in private.

    Must the city council give any notice under the Act when it is meeting to discuss the strategy to be taken during collective bargaining with an employee union?

    No. Under RCW 42.30.140(4), this meeting is exempt from the Open Public Meetings Act. The council may therefore meet without notifying anyone. Of course, each of the councilmembers presumably would be notified.


    What Are the Penalties for Violating the Act?

    The only avenue provided by the Open Public Meetings Act to enforce its provisions or to impose a penalty for a violation of its provisions is by an action in superior court. "Any person" may bring that action in superior court. If a superior court determines that a violation has occurred, liability may be imposed as follows:

    • Individual liability. Members of a governing body who attend a meeting where action is taken in violation of the Act are subject to a $100 penalty if they attend with knowledge that the meeting is in violation of the Act. [ RCW 42.30.120(1).] Violation of the Act is not a criminal offense. The penalty is assessed by the superior court, and any person may bring an action to enforce the penalty.

      A knowing or intentional violation of the Act may provide a legal basis for recall of an elected member of a governing body, although recall is not a penalty under the Act. [ See In re Beasley , 128 Wn.2d 419 (1996); In re Roberts , 115 Wn.2d 556 (1990); Estey v. Dempsey , 104 Wn.2d 597 (1985); Teaford v. Howard , 104 Wn.2d 580 (1985).]

    • City or county liability. The city or county is liable for all costs, including reasonable attorney fees. [ RCW 42.30.120(2).]

    However, if a court determines by written findings that an action for violation of the Act was "frivolous and advanced without reasonable cause," a city or county may be awarded reasonable expenses and attorney fees. [ Id.]

    In addition to the above, any person may bring an action by mandamus or injunction to stop violations of the Act or to prevent threatened violations. [ RCW 42.30.130.]

    Actions in violation of the Act are null and void. Any ordinance, resolution, rule, regulation, order, or directive that is adopted at a meeting that does not comply with the Act, and any secret vote taken, is null and void. [ RCW 42.30.060.]


    Selected Cases and Research References

    General References

    • "Public Records and Open Meetings Potpourri: Case Updates and Practice Tips," by Gary E. Keese, Legal Notes, MRSC Information Bulletin No. 494 (1996).

    • "Status of the Attorney-Client Privilege Under the Open Public Meetings Act," by Robert F. Hauth, Legal Notes, MRSC Information Bulletin No. 486 (1994).

    • "Open Public Meetings: Current Issues and Developments," by Nyle G. Barnes, Legal Notes, MRSC Information Bulletin No. 458 (1989).

    • AGO 1971 No. 33. This AGO contains a comprehensive overview of the scope of the Open Public Meetings Act, as it was enacted in 1971. Although parts of the Act have been amended since 1971, much of it remains the same.

    RCW 42.30.010 - Legislative Declaration (Purpose of Act)

    • Cathcart v. Anderson, 85 Wn.2d 102 (1975).

    RCW 42.30.020 - Definitions

    • Improvement Alliance v. Snohomish Cy., 61 Wn. App. 64 (1991).

    • Estey v. Dempsey, 104 Wn.2d 597 (1984).

    • AGO 1986 No. 16 - Applicability of Open Public Meetings Act to a committee of the governing body.

    RCW 42.30.030 - Meetings Declared Open and Public

    • AGO 1992 No. 21

    RCW 42.30.060 - Actions in Violation of Act are Null and Void

    • OPAL v. Adams County, 128 Wn.2d 869 (1996).

    • Henry v. Oakville, 30 Wn. App. 240 (1981).

    • Slaughter v. Fire District, 50 Wn. App. 733 (1988).

    RCW 42.30.070 - Time and Places for Meetings - Emergencies

    • Mead School Dist. v. Mead Education Assoc., 85 Wn.2d 140 (1975).

    • AGO 1992 No. 21.

    RCW 42.30.080 - Special Meetings

    • Estey v. Dempsey, 104 Wn.2d 597 (1985).

    • Kirk v. Fire Protection Dist., 95 Wn.2d 769 (1981).

    RCW 42.30.110 - Executive Sessions

    • Port of Seattle v. Rio, 16 Wn. App. 718 (1977).

    RCW 42.30.120 - Violations - Personal Liability - Penalty - Attorney Fees and Costs

    • Protect the Peninsula's Future v. Clallam Cy., 66 Wn. App. 671 (1992).

    • Cathcart v. Anderson, 10 Wn. App. 429 (1974).

    RCW 42.30.130 - Violations - Mandamus or Injunction

    • Protect the Peninsula's Future v. Clallam Cy., 66 Wn. App. 671 (1992).

    • Lopp v. Peninsula School Dist., 90 Wn.2d 754 (1978).

    RCW 42.30.140 - Chapter Controlling - Application (Exceptions)

    • Protect the Peninsula's Future v. Clallam Cy., 66 Wn. App. 671 (1992).

    • Pierce v. Lake Stevens School Dist., 84 Wn.2d 772 (1974).
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