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AGLO 1972 No. 061 - August 09, 1972
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Slade Gorton | 1969-1980 | Attorney General of Washington
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                                                                  August 9, 1972
 
 
 
Honorable William Chatalas
State Representative, 33rd District
4803 42nd Avenue South
Seattle, Wa.  98118
                                                                                            Cite as:  AGLO 1972 No. 61 (not official)
 
 
Dear Sir:
 
            We are writing in response to your recent letter requesting our opinion on a question which we paraphrase as follows:
 
            Are the meetings of the state advisory committee to the Department of Social and Health Services, as provided for in Sections 13, 14, and 15, of Chapter 189, Laws of 1971 Extraordinary Session, subject to the provisions of the Open Public Meetings Act of 1971 (Chapter 250, Laws of 1971 Extraordinary Session)?
 
                                                                     ANALYSIS
 
            We believe that this question is answerable in the negative.  The basic substantive requirements of Chapter 250, supra, are set forth in §§ 3 and 6 thereof, as follows:
 
            "All meetings of the governing body of a public agency shall be open to 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 act."  (Section 3)
 
            "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 and then only at a meeting, the date of which is fixed by law or rule, or at a meeting of which notice has been given according to the provisions of this act.  Any action taken at meetings failing to comply with the provisions of this section shall be null and void."  (Section 6)
 
            All of the key terms used in these two sections are expressly defined by § 2, as follows:
 
            "As used in this act unless the context indicates otherwise:
 
            (1) 'Public agency' means:
 
            (a) Any state board, commission, committee, department, educational institution or other state agency which is  [[Orig. Op. Page 2]] created by or pursuant to statute, other than courts and the legislature.
 
            (b) Any county, city, school district, special purpose district or other municipal corporation or political subdivision of the state of Washington;
 
            (c) Any subagency of a public agency which is created by or pursuant to statute, other than courts and the legislative act, including but not limited to planning commissions, library or park boards, and other boards, commissions and agencies.
 
            (2) 'Governing body' means the multimember board, commission, committee, council or other policy or rule‑making body of a public agency.
 
            (3) 'Action' means the transaction of the official business of a public agency by a governing body including but not limited to a collective decision made by a majority of the members of a governing body, a collective commitment or promise by a majority of the members of a governing body to make a positive or negative decision, of 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.
 
            (4) 'Meeting' means meetings at which action is taken."
 
            In AGO 1971 No. 33 [[to King Lysen, State Representative on October 29, 1971]], copy enclosed, we considered and answered some twenty questions pertaining to the scope and operation of this new act.  One of these questions dealt, specifically, with the matter of whether advisory committees, boards and commissions are subject to the provisions of the act ‑ insofar as their meetings are concerned.  We responded as follows:
 
            "There are in this state a multitude to various statutory and ad hoc advisory committees and groups.  We have seen that in order to be subject to the provisions of 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 discretionary ad hoc groups which may be formed pursuant to a general, implied executive authority  [[Orig. Op. Page 3]] 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 as ejusdem generis.  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."
 
            With these principles in mind, let us now examine the statute which governs the advisory committee to the Department of Social and Health Services.  First to be noted is Section 13, Chapter 189 Laws of 1971 Extraordinary Session, which provides as follows:
 
            "There is hereby created a state advisory committee to the Department of Social and Health Services which shall serve in an advisory capacity to the secretary of the Department of Social and Health Services.  The committee shall be composed of not less than nine nor more than fifteen members, to be appointed by the governor, who shall appoint a chairman, who shall serve as such at the governor's pleasure.  The members of the committee shall hold office as follows:  Two members to serve two years; two members to serve three years; and three members to serve four years.  Upon expiration of said original terms, subsequent appointments shall be for four years except in the case of a vacancy, in which event appointment shall be only for the remainder of the unexpired term for which the vacancy occurs.  No member shall serve more than two consecutive terms."
 
            Thus, this committee clearly does meet the first element of the test enunciated in our prior opinion; i.e., it is an agency created by statute.
 
             [[Orig. Op. Page 4]]
            With respect to the second element, we turn to Section 14, Chapter 189, Laws of 1971 Extraordinary Session, which sets forth the powers and duties of this advisory committee as follows:
 
            "The state advisory committee shall have the following powers and duties:
 
            (1) To serve in an advisory capacity to the secretary or all matters pertaining to the Department of Social and Health Services.
 
            (2) To acquaint themselves fully with the operations of the Department and periodically recommend such changes to the secretary as they deem advisable.
 
            (3) No person shall be eligible to hold the office of member of the state advisory committee who holds any public office, whether appointive or elective, with the exception of nonsalaried positions."
 
            It is clear from the above statute that the functions of the committee are advisory and recommendatory only, and that the committee's advice or action is not a necessary antecedent to any action by the Department of Social and Health Services or the secretary thereof.  This committee has not been vested by the legislature with any aspect of rule making or policy making authority.
 
            No part of the committee's action is binding on the agency nor is any part thereof a legally necessary condition precedent to agency action under this or any other statutory provision.
 
            Accordingly, consistent with our prior opinion on this subject, we conclude that this committee is not subject to the provisions of the Open Public Meetings Act insofar as the conduct of any of its meetings is concerned.  Clearly, however, although the committee is not required to have its meetings open to the public, it is certainly authorized to do so if it wishes.
 
            We trust that the foregoing is of assistance to you.
 
Very truly yours,
 
 
DONALD J. HOROWITZ
Senior Assistant Attorney General
Chief, Social and Health Services Division
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