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AGLO 1972 No. 072 - September 08, 1972
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Slade Gorton | 1969-1980 | Attorney General of Washington
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                                                               September 8, 1972
I-90 Board of Review
c/o Mr. Richard H. Riddell
Seattle First National Bank Building
Seattle, Washington 98154
                                                                                            Cite as:  AGLO 1972 No. 72 (not official)
            By recent letter you made reference to the establishment of a board of review under the provisions of RCW 47.52.150 ". . . to resolve the pending dispute between the City of Seattle and the Washington State Highway Department as to the precise manner in which Interstate Highway No. 90 will terminate within the confines of the City of Seattle.  . . ."  You then stated that this board is desirous of obtaining our opinion ". . . as to the applicability [to its proceedings] of the Open Public Meeting Act of 1971 to the Board of Review."  By way of a refinement of this request you concluded by indicating that:
            "The Board, in its public meeting held on July 31, 1972, directed that the formal hearings commence on September 14, 1972.  The Board has directed that the hearings themselves be fully open to members of the press and the public.  The question primarily relates to whether or not the deliberations of the Board, following the conclusion of testimony and argument by counsel, must be public or not.  . . ."
            Before looking to the pertinent provisions of the open meetings act (chapter 250, Laws of 1971, Ex. Sess.), let us first examine the underlying basis for, and the functions of, a board of review such as that to which your question refers.  We begin by noting that whenever the state highway commission decides to construct a limited access facility through either an incorporated city or town or through the unincorporated territory of a county, it is required by the provisions of RCW 47.52.131 to give consideration to a number of factors and to conduct conferences with the appropriate city or county officials.  In addition, a public hearing must be held after notice to the owners of property abutting on the proposed facility.  See RCW 47.52.133, which provides, in material part, as follows:
             [[Orig. Op. Page 2]]
            "The highway authorities of the state, counties, and incorporated cities and towns, prior to the establishment of any limited access facility, shall hold a public hearing within the county, city or town wherein the limited access facility is to be established, to determine the desirability of the plan proposed by such authority.  Notice of such hearing shall be given to the owners of property abutting the section of any existing highway, road or street being established as a limited access facility, as indicated in the tax rolls of the county, and in the case of a state limited access facility, to the county and/or city or town.  . . ."
            At this hearing any representative of the city, town or county affected, or any other person, may appear and be heard on the question of establishment of the proposed facility.  See RCW 47.52.135, which also requires that all testimony taken at this hearing be taken under oath, ". . . as in superior courts."  Thereafter, following the conclusion of the hearing a plan is to be adopted by the highway commission and a resume of this plan is to be published.  Under RCW 47.52.137 the plan as thus formulated becomes final thirty days after the findings and order of the authority have been mailed to the various interested parties (including the city or town, or county through which the facility is to be constructed) if no review thereof is sought in the manner provided by law.
            In the case of abutting property owners, such review is available pursuant to the following provisions of RCW 47.52.195:
            "An abutting property owner may petition for review in the superior court of the state of Washington in the county where the limited access facility is to be located.  Such review and any appeal therefrom shall be considered and determined by said court upon the record of the authority in the manner, under the conditions and subject to the limitations and with the effect specified in the Administrative Procedure Act, chapter 34.04 RCW, as amended."
            On the other hand, review of the plan at the behest of an affected county, city or town is provided for by a different set of statutes, RCW 47.52.139 through 47.52.190.  The first of these, RCW 47.52.139, provides that:
            "Upon receipt of the findings and order adopting a plan, the county, city or town may notify the state highway commission of its approval of such plan in writing, in which event such plan shall be final.
             [[Orig. Op. Page 3]]
            "In the event that a county, city or town does not approve the plan, the county, city or town shall file its disapproval in writing with the state highway commission within thirty days after the mailing thereof to such mayor or county commissioner.  Along with the written disapproval shall be filed a written request for a hearing before a board of review, hereinafter referred to as the board.  The request for hearing shall set forth the portions of the plan of the state highway commission to which the county, city or town objects, and shall include every issue to be considered by the board.  The hearing before a board of review shall be governed by RCW 47.52.150 through 47.52.190."
            Following the receipt of such a request a five‑member board of review is to be formed consisting of two appointees of the affected city or town, two appointees of the highway commission, and one member appointed by the other four.  See, RCW 47.52.150.  Thereafter, pursuant to the provisions of RCW 47.52.160,
            "The board shall fix a reasonable time not more than thirty days after the date of their appointment and shall indicate the time and place for the hearing, and shall give notice thereof to the county, city or town and to the state highway commission.  At the time and place fixed for the hearing, the state and the county, the city or town shall present all of their evidence with respect to the objections set forth in the request for the hearing before the board, and if either the state, the county or the city or town fails to do so, the board may determine the issues upon such evidence as may be presented to it at said hearing."
            Also to be noted are RCW 47.52.170 and 47.52.180, which provide, respectively, as follows:
            RCW 47.52.170:
            "No witness's testimony shall be received unless he shall have been duly sworn, and the board may cause all oral testimony to be stenographically reported.  Members of the board, its duly authorized representatives, and all persons duly commissioned by it for the purpose of taking depositions, shall have power to administer oaths; to preserve and enforce order during such hearings; to issue subpoenas for, and to compel the attendance and testimony of witnesses, or the production of books, papers, documents and other evidence, or the taking of depositions before any designated individual competent to administer oaths, and  [[Orig. Op. Page 4]] it shall be their duty so to do; to examine witnesses; and to do all things conformable to law which may be necessary to enable them, or any of them, effectively to discharge the duties of their office."
            RCW 47.52.180:
            "At the conclusion of such hearing, the board shall consider the evidence taken and shall make specific findings with respect to the objections and issues within thirty days after the hearing, which findings shall approve, disapprove or modify the proposed plan of the state highway commission.  Such findings shall be final and binding upon both parties."
            Those, then, in essence are the procedures which have been invoked by the city of Seattle to obtain a review of the plans formulated by the highway commission with regard to the manner in which Interstate Highway No. 90 will terminate within the confines of that city.  A board of review has been formed and is now about to proceed ‑ but desires our opinion as to the applicability of the open public meetings act before doing so.
            As you know, this 1971 act generally reaches and applies to all meetings and deliberations, both formal and informal, of multimember state and local governmental bodies.  See, AGO 1971 No. 33 [[to King Lysen, State Representative on October 29, 1971]], copy enclosed.  However, as pointed out on pages 40 and 41 of that opinion, § 14 of this act provides for the following three specific exemptions from its provisions:
            ". . . this act shall not apply to:
            "(1) 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; or
            "(2) 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; or
             [[Orig. Op. Page 5]]
            "(3) matters governed by Title 34 RCW, the administrative procedures act, except as expressly provided in section 17 of this 1971 amendatory act."
            Based upon the statute governing a board of review established pursuant to RCW 47.52.150, as above set forth, it is possible, first, to postulate that the proceedings before such a board, including its deliberations in connection with the preparation of such findings as are contemplated by RCW 47.52.180, constitute "quasi-judicial" matters covered by subsection (2) of this exemption.  In discussing this subsection in AGO 1971 No. 33, supra, we said:
            "The term 'quasi-judicial' is ordinarily used to described the actions of public administrative officers who are first required to investigate facts or ascertain the existence of facts and then draw conclusions therefrom as a basis for their official action and exercise discretion of a judicial nature.  See, Black's Law Dictionary, 4th ed.; see, also Ozette R. Co. v. Grays Harbor County, 16 Wn.2d 459, 133 P.2d 983 (1943), wherein the Washington supreme court concluded that the county board of equalization acted in a quasi-judicial capacity when determining the valuation of property for tax purposes.  Another case to be noted is Canney v. Board of Public Instruction of Alachua Co., 231 S. 2d 34 (Fla. Ct. of App. 1970), in which the Florida court held that when a school board acted to suspend a student for violation of a hair and dress regulation, it was acting in a quasi-judicial capacity under a similar exemption contained in the Florida open meetings act.
            "Thus, if a governing body of an agency has among its functions that of acting in such a quasi-judicial capacity with regard to certain matters, it is to be regarded as a 'quasi-judicial body under the act.'  Thereupon, it need not comply with the public meeting requirements of the act during such times as it is actually engaged in the exercise of this quasi-judicial function."
            We need not, however, rest our answer to your question on this rationale.  In our opinion, irrespective of the applicability of this subsection (2) exemption, all of the subject proceedings of a board of review as above described constitute "matters governed by Title 34 RCW, the administrative procedures act, . . ." and, for this reason, are in any event  [[Orig. Op. Page 6]] exempt from the open meetings act by virtue of section 14 (3), supra.
            The determinative portion of the administrative procedures act, insofar as this question is concerned, is the definition of a "contested case" which is set forth in RCW 34.04.010, as follows:
            "(3) 'Contested case' means a proceeding before an agency in which an opportunity for a hearing before such agency is required by law or constitutional right prior or subsequent to the determination by the agency of the legal rights, duties, or privileges of specific parties.  Contested cases shall also include all cases of licensing and rate making in which an application for a license or rate change is denied except as limited by RCW 66.08.150, or a license is revoked, suspended, or modified, or in which the granting of an application is contested by a person having standing to contest under the law or agency rules."
            An "agency," under this act, means:
            ". . . any state board, commission, department, or officer, authorized by law to make rules or to adjudicate contested cases, except those in the legislative or judicial branches."
            The functions of a board of review established pursuant to RCW 47.52.150 are such as to lead us, first, to conclude that such a board is an "agency" under this definition.  Accord, State v. Board of Valuation, 72 Wn.2d 66, 431 P.2d 715 (1967).  In addition, it seems evident to us that the proceedings before this board, as provided for by RCW 47.52.160 ‑ 47.52.180, supra, involve a ". . . determination . . . of the legal rights, duties or privileges of specific parties"; i.e., the state highway commission, on the one hand, and the contesting city or county on the other.  As we view it, the basic function of a board of review is to determine whether the highway commission shall have the right to construct the proposed limited access facility as planned ‑ as opposed to the claims of the contesting county or city that the facility should be constructed in some other manner.
            Therefore, by way of a direct answer to your question, it is thus our opinion that the proceedings of a board of review established pursuant to the provisions of RCW 47.52.150 are governed by the administrative procedures act and, hence, are exempt from the provisions of the open public meetings act pursuant to the terms of § 14 (3) thereof.
             [[Orig. Op. Page 7]]
            We trust the foregoing will be of assistance to you.
Very truly yours,
Edward B. Mackie
Deputy Attorney General
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