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AGLO 1975 No. 53 - May 22, 1975
AGO Opinion Header Image
Slade Gorton | 1969-1980 | Attorney General of Washington

OFFICES AND OFFICERS ‑- STATE ‑- COUNCIL ON HEARING AIDS ‑- OPEN PUBLIC MEETINGS ACT ‑- APPLICABILITY OF

The Open Public Meetings Act (chapter 42.30 RCW) is applicable to the council on hearing aids which is provided for by RCW 18.35.150.

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                                                                   May 22, 1975

Honorable Thornton K. Shaw
Chairman, Council on Hearing Aids
Division of Professional Licensing
P.O. Box 649
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1975 No. 53

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office regarding the applicability of our state's open public meetings act, chapter 42.30 RCW, to the council on hearing aids which is provided for by RCW 18.35.150.

            In our opinion the open public meetings act is applicable to this agency.

                                                                     ANALYSIS

            We have previously provided you with a copy of AGO 1971 No. 33 [[to King Lysen, State Representative on October 29, 1971]], a comprehensive opinion on various aspects of the open public meetings act, which was written by this office shortly after the enactment of this new law by the 1971 legislature.1/   Among the questions considered in that opinion was the following:

            "Are advisory committees, boards and commissions subject to the provisions of the open meetings act?"

            The full text of our answer to that question, as set forth on pages 8 and 9 of our prior opinion, was as follows:

            "There are in this state a multitude of various statutory andadhoc advisory committees and groups.  We have seen that in order to be subject to the provisions of  [[Orig. Op. Page 2]] the act any such body must be a 'public agency' with a 'governing body.'  With regard to the first of these requirements, any state board or commission created by or pursuant to statute is clearly a 'public agency' under § 2(1)(a), supra, and this term also 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, . . .'  (Section 2(1)(c),supra.)  We read the phrase 'by or pursuant to statute . . .' in these two subsections as meaning that a statute or ordinance has actually created the committee or has specifically authorized its creation.  Therefore, we do not believe that this definition would include those discretionaryadhoc groups which may be formed pursuant to a general, implied executive authority instead of a specific statute or ordinance.

            "As for the matter of a governing body, we note that the definition in § 2(2) speaks of boards, commissions, committees, councils or other policy or rule‑making bodies of a public agency.  The clear inference to be drawn from the word 'other' in this context is that the phrase 'policy or rule‑making' modifies those terms which precede it as well as those which follow.  See,State v. Hemrich, 93 Wash. 439, 161 Pac. 79 (1916), and cases discussed therein, involving an application of the doctrine of construction commonly referred to asejusdemgeneria.  Thus, even if a particular advisory committee is 'created by or pursuant to' a statute or ordinance, it will still not be governed by the act unless it possesses some aspect of policy or rule‑making authority.  In other words, its 'advice,' while not binding upon the agency with which it relates (otherwise it would not be an advisory committee at all), must nevertheless be legally a necessary antecedent to that agency's action; e.g., as in the case of a planning commission which, we note, is expressly included as a 'public agency' in § 2(c),supra.  See, AGO 1971 No. 8 [[to Earl F. Angevine, Prosecuting Attorney, Skagit County on February 10, 1971]], copy enclosed, wherein we reviewed the relationship between a county planning commission and a board of county commissioners."

             [[Orig. Op. Page 3]]   With this reasoning and conclusion in mind, let us turn now to the council on hearing aids.  RCW 18.35.150, codifying § 15, chapter 106, Laws of 1973, 1st Ex. Sess., provides in subsection (1) that:

            "(1) There is created hereby the council on hearing aids.  The council shall consist of seven members to be appointed by the governor."

            Subsection (2) of this statute then sets forth the qualifications which must be possessed by persons appointed to the council on hearing aids; subsection (3) fixes the duration of the terms of office to be served by members of the council; and subsection (4) provides for the designation of a chairman of the council to be ". . . elected from the membership of the council at the beginning of each year."

            Insofar as council meetings are concerned, RCW 18.35.150(5) provides as follows:

            "(5) The council shall meet at least once each year, at a place, day and hour determined by the council, unless otherwise directed by a majority of council members.  The council shall also meet at such other times and places as are requested by the department or by three members of the council."

            Finally, RCW 18.35.150(6) states that:

            "(6) Members of the council shall not be compensated for their services, but shall be reimbursed for their traveling expenses and receive a per diem in the manner provided for state employees under chapter 43.03 RCW."

            The key to our answer to your question, however, is not contained in any of the foregoing statutory provisions but, instead, derives from RCW 18.35.160, codifying § 16, chapter 106,supra, which reads, in full, as follows:

            "(1) The council shall have the responsibility and duty of advising the department in matters relating to this chapter, subject to approval by the department shall prepare the examination required by this chapter, and shall assist the department in carrying out the provisions of this chapter.

             [[Orig. Op. Page 4]] "(2) The department shall consider and be guided by the recommendations of the council pursuant to this section and in all matters of policy relating to this chapter.

            "(3) The council whenever possible shall recommend that the department enter into reciprocity of licensure agreements with those states having licensure requirements equivalent to or higher than those provided herein.

            "(4) The council shall have the responsibility and duty of advising the department and preparing specific recommendations concerning the minimum standards of equipment and procedures in the fitting and dispensing of hearing aids."

            But for the directive contained in subsection (2) of this statute we would be inclined to view the council on hearing aids as one of those kinds of advisory bodies whichare not subject to the open public meetings act because, without that provision, the council's 'advice' to the department (i.e., the department of motor vehicles in accordance with the definition contained in RCW 18.35.010) could, in effect, legally be ignored by that latter agency.  Subsection (2), however, precludes any such course of action by the department of motor vehicles in that this portion of the statute, by its use of the mandatory word 'shall,' legally requires the department to:

            ". . . consider and be guided by the recommendations of the council pursuant to this section and in all matters of policy relating to this chapter."

            It is therefore our opinion that the council on hearing aids is a public agency which must comply with all of the various requirements of the open public meetings act, as outlined in detail in AGO 1971 No. 33, in the conduct of its official business.

             [[Orig. Op. Page 5]]   We trust that the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/Chapter 250, Laws of 1971, Ex. Sess.

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