Open Public Meetings Act
The state Open Public Meetings Act requires that all meetings of governing bodies of public agencies, including cities, counties, and special purpose districts, be open and accessible to the public. A meeting generally includes any situation in which a majority of a city council, board of county commissioners, or other governing body (including certain kinds of committees) meets and discusses the business of that body. In order to be valid, ordinances, resolutions, rules, regulations, orders, and directives must be adopted at public meetings. The Act contains specific provisions regarding: regular and special meetings; executive sessions; types of notice that must be given for meetings; conduct of meetings; and penalties and remedies for violation of the Act.
For an in-depth discussion of the Act, see the MRSC publication entitled The Open Public Meetings Act - How it Applies to Washington Cities, Counties, and Special Purpose Districts (), updated in May 2012. MRSC also has a publication dealing with basic legal guidelines for municipal officials called Knowing the Territory - Basic Legal Guidelines for Washington City, County, and Special Purpose District Officials () that discusses the purpose of the Open Public Meetings Act and its application to Washington cities, counties, and special purpose districts.
Selected Court Decisions
- West v. Wash. Ass'n of County Officials, 162 Wn. App. 120 (2011) - The OPMA applies to the Association of Washington Cities
The application of the Open Public Meetings Act to any "other state agency which is created by or pursuant to statute" includes "an association or organization created by or pursuant to statute which serves a statewide public function." The court held that the Washington Association of County Officials is subject to the Act under this definition, because it was created by statute and because elected public officials performed its activities financed by public money with an express legislative mandate to act as a coordinating agency for all of Washington's 39 counties.
- In re Recall of Davis, 164 Wn.2d 361 (2008) - Port commissioner cannot act outside the scope of her duties
A port commissioner signed an agreement providing for severance pay for the port's departing chief executive officer. A citizen sought to recall the commissioner for taking this action outside a public meeting. The Court inferred from the record that the commissioner understood her duties as a port commissioner and the legal necessity of voting in public session before potentially obligating the port in any monetary agreement, and, for purposes of recall, intentionally acted outside the scope of these duties by signing an agreement. The court found that the payment was not voted on or approved by the port at a regularly scheduled public hearing and thus concluded charge one of the ballot synopsis is legally sufficient.
- Eugster v. City of Spokane, 128 Wn. App. 1 (2005) - A quorum required before official action
The language of RCW 42.30.060(1) ("No governing body of a public agency shall adopt any ordinance, resolution, rule, regulation, order, or directive, except in a meeting open to the public . . .") allows a governing body to take some actions without a public meeting. No meeting takes place, and the Open Public Meetings Act does not apply, if the governing body of a public agency lacks a quorum.
- Loeffelholz v. C.L.E.A.N., 119 Wn. App. 665 (2004) - Election workers not a governing body
A group of election workers were not the "governing body" of a "public agency." They were not organized, by statute or any other provision of law, into either a "public agency" or a "governing body." A "meeting" could not be subject to the OPMA unless it was the "meeting" of the "governing body" of a "public agency." The election workers could not be a "governing body" unless they had policy-making or rule-making authority, which they did not possess.
- Feature Realty, Inc. v. Spokane, 331 F.3d 1082 (9th Cir. 2003) - Executive sessions must comply with statute
Action taken in executive session by a city council to approve a settlement agreement (a "collective positive decision") is beyond the scope of action that may be taken in executive session under RCW 42.30.110(1)(i) for discussion of litigation, potential litigation, or enforcement actions.
- Clark v. City of Lakewood, 259 F.3d 996 (9th Cir. 2001) - Ratification of invalid act is null and void
Although RCW 42.30.060(1) provides that any action taken at a meeting held in violation of the Open Public Meetings Act is null and void, the statute does not require that subsequent actions taken in compliance with the Act are also invalidated. But, where action taken in open session merely ratifies an action taken in violation of the Act, the ratification is also null and void.
- In re Recall of Kast, 144 Wn.2d 807 (2001) - Removal of disruptive person
If members of the public in attendance at a meeting are disruptive and make further conduct of the meeting infeasible, they may be removed. However, the discretion to order removal of a disruptive person from a meeting must be excercised reasonably.
- Recall of Lakewood City Council, 144 Wn.2d 583 (2001) - Executive session; potential litigation
The authorization in the Open Public Meetings Act for a governing body to meet in executive session to discuss potential litigation applies when a governing body engages in a candid discussion with legal counsel regarding the legal risks and consequences of potential litigation. RCW 42.30.110(1)(i) does not require a governing body to determine beforehand whether disclosure of the discussion would or would not likely cause adverse legal consequence. This statutory exception to the open meeting requirement is unavailable only if, from an objective standard, the governing body should know beforehand that the discussion is benign and will not likely result in adverse consequences. (Note: The 2001 legislature amended RCW 42.30.110(1)(i) by defining "potential litigation." This amendment did not apply to this case, but, in any event, it does not appear that the amendment would have changed the court's holding if it had applied.)
- Eugster v. City of Spokane, 110 Wn. App. 212, review denied, 147 Wn.2d 1021 (2002) - What constitutes "action"
For purposes of the Open Public Meetings Act, an "action" taken by a governing body can constitute final action where the members of the governing body arrive at a consensus position or agree to a collective positive or negative decision; a final action does not always require a formal vote.
- Wood v. Battle Ground School District, 107 Wn. App. 550 (2001) - OPMA doesn't apply to "members-elect"
The Open Public Meetings Act (OPMA) does not apply to members-elect of a governing body, because they have no authority to transact the official business of the public agency. The OPMA can apply, depending on the circumstances, to e-mail communications between a majority of the members of a governing body. An exchange of e-mail can constitute a "meeting" under the OPMA, if a majority of the members "collectively intend to meet [by e-mail] to transact the governing body's official business" and they "communicate about issues that may or will come before the [governing body] for a vote." However, the OPMA is not violated when the members of a governing body merely receive information by e-mail about upcoming issues.
- Miller v. Tacoma, 138 Wn.2d 318 (1999) - Secret ballots illegal
Balloting by members of a city council when meeting in executive session to evaluate the qualifications of applicants for appointment to the planning commission violates the Open Public Meetings Act. Council balloting to achieve a consensus on a candidate for appointment to the commission was beyond the scope of the action that may take place in executive session for the purpose of evaluating candidate qualifications. The council's secret balloting was illegal even though it took a final vote on the appointment in open session.
- OPAL v. Adams County, 128 Wn.2d 869 (1996) - Previous discussion
Although two commissioners discussed their intention to issue a permit over the telephone the night before a public hearing on the matter, the court determined that invalidation of an otherwise proper formal action of a public body is not required merely because the subject matter of that formal action was previously discussed at a nonpublic meeting.
- Port of Edmonds v. Fur Breeders, 63 Wn. App. 159 (1991) - Failure to give notice of preliminary agenda
Failure to provide public notice of the preliminary agenda of a council meeting and even of an item which is to be considered at the meeting may invalidate action taken at that meeting. The notice given must fairly apprise the public of the action to be taken at the meeting.
- Slaughter v. Fire District No. 20, 50 Wn. App. 733 (1988) - Requirements for adoption of ordinances
Ordinances, resolutions, and other regulations or rules must be adopted at open public meetings; otherwise they are invalid.
- Cathcart v. Andersen, 85 Wn.2d 102 (1975) - Purpose of OPMA
The purpose of the Open Public Meetings Act is to permit the public to observe all steps in the making of government decisions.
Attorney General Opinions
- AGO 2010 No. 9 - Committee meeting notice
The Open Public Meetings Act requires that notice be properly given of a meeting of the governing body, and concludes that this requirement is not satisfied by notice given for a meeting of a standing committee of a city council as a governing body, where a quorum of members of the city council attend the meeting and take action as defined in the act, such that a meeting of the city council as a governing body takes place.
- AGO 2006 No. 6 - Quorum of members outside of official council meeting
Addresses the applicability of Open Public Meetings Act when a quorum of the members of a governing body are present at a meeting not called by that body. It concludes that the presence of a quorum of the members of a city or county council at a meeting not called by the council does not, in itself, make the meeting a “public meeting” of that city or county council for purposes of the Open Public Meetings Act. The Act would apply if the councilmembers took any “action” as defined in RCW 42.30.020(3) at the meeting, such as voting, deliberating together, or using the meeting as a source of public testimony for council action.
- AGO 1998 No. 15 - Video or sound recordings
A governing body does not have authority to ban video or sound recording of a meeting required to be open under the Act; it may regulate recording only to the extent necessary to preserve order at the meeting and facilitate public attendance.
- AGO 1986 No. 16 - Citizen committees appointed by governing body
Addresses the applicability of the Open Public Meetings Act to a committee of the governing body. It concludes that the definition in RCW 42.30.020(2) of "governing body, including any "committee thereof," covers both committees composed of members of the governing body and committees composed of nonmembers appointed by the governing body. It also concludes that a committee of the governing body is required to comply with the Act when it acts on behalf of the governing body by exercising actual or de facto decisionmaking power.
- AGO 1971 No. 33 - Basic principles of OPMA
Discussion regarding the basic principles of the Open Meetings Act, and response to specific questions posed by state legislators.
- Curing a Violation of the Open Public Meetings Act?, by Milt Rowland and Steve DiJulio, Foster Pepper PLLC, Council/Commission Advisor, MRSC, 03/2013
- The Open Public Meetings Act and Filling Elective Office Vacancies in a City, by Pat Mason, MRSC Insight, 10/31/2012
- What’s the Difference Between a Closed Session and an Executive Session?, by Joe Levan, MRSC Insight, 10/25/2012
- “We’re Going into Executive Session to Discuss Personnel.” Is That Okay?, by Paul Sullivan, MRSC Insight, 07/03/2012
- What are the Proper Procedures for Holding an Executive Session?, by Pat Mason, MRSC Insight, 06/26/2012
- Can a Majority of the Members of a Governing Body Call a Special Meeting Without Violating the OPMA in Doing So?, by Bob Meinig, MRSC Insight, 06/05/2012
- Notice the New OPMA Notice Requirements!, by Bob Meinig, MRSC Insight, 04/17/2012
- The Open Public Meetings Act and Electronic Communications, by Ramsey Ramerman, Foster Pepper, PLLC, 12/2006
- Applicability of the Washington State Open Public Meetings Act to E-mail Exchanges (), by Phil Olbrechts, Ogden Murphy Wallace, 08/15/2001
- Public Hearings - When and How to Hold Them