MEETINGS ‑- PUBLIC ‑- APPLICABILITY OF OPEN PUBLIC MEETINGS ACT TO STATE AND LOCAL GOVERNMENTAL AGENCIES
Applicability of open public meetings act of 1971 to state and local governmental agencies; agency actions or activities covered by the act; notice and other procedural requirements; sanctions or penalties for noncompliance; exemptions.
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October 29, 1971
Honorable King Lysen
State Representative, 31st District
12040 Standring Court S.W.
Seattle, Washington 98146
Cite as: AGO 1971 No. 33
By letter previously acknowledged, you have requested our opinion on the scope of the new open public meetings act ‑ chapter 250, Laws of 1971, 1st Ex. Sess. You have particularly inquired as to whether, and to what extent, this act applies to
". . . informal gatherings, briefing sessions, informal discussions, and other meetings where no formal vote is taken . . ."
We shall attempt to provide you with an answer to this question in the analysis below; and, in so doing we shall also seek to cover a substantial number of related questions involving this new law which we have received in one form or another during recent weeks. In this manner, hopefully, we can by this single opinion provide as complete a coverage as is possible of the many legal ramifications of the act.
[[Orig. Op. Page 2]]
By its enactment of chapter 250, Laws of 1971, 1st Ex. Sess., the legislature basically replaced our earlier, 1953, public meetings act1/ with a comprehensive new act dealing with this subject. This new act was patterned closely after a California statute, commonly referred to as the "Brown Act";2/ and it also is somewhat similar to an open public meetings act which was passed several years ago in Florida.3/ Fortunately, both of these comparable statutes have received a good deal of interpretive attention from both the courts and the attorneys general of their respective states, and we will refer to and, where appropriate, be guided by these interpretations throughout this opinion. Accord,Jackson v. Colagrossi, 50 Wn.2d 572, 313 P.2d 697 (1957), and authorities cited therein.
Before examining the provisions of the new act let us first, for comparative purposes, note the general thrust of the earlier law which it has replaced. Prior to August 9, 1971, when chapter 250, supra, became effective, the meetings of public agencies in this state ‑ both state and local ‑ were governed by chapter 216, Laws of 1953, a three section act codified as RCW 42.32.010 ‑ 42.32.030. The first section of that act required that the adoption of any ordinance, resolution, rule, etc., be done at a meeting open to the public. If the date of that meeting was not fixed by law or rule, then in advance of the meeting there was to be notification to the press, radio and television in the county in which the meeting was to be held. The second section, RCW 42.32.020 specifically permitted the public agency to hold executive sessions and to exclude the public therefrom for all purposes other than "final adoption" of an ordinance, rule, regulation, etc. The third section, RCW 42.32.030, required that minutes be kept of all regular and special meetings, except executive sessions, and further required that those records be open [[Orig. Op. Page 3]] for public inspection.4/
Under this prior legislation it was quite possible for a public agency to take all of the preliminary steps toward action, save only the final act of formal adoption of the rule or other directive, in sessions which were closed to the public. It is important that this be understood, because a legislature which enacts a new law such as that we are here considering must be presumed to have been aware of the scope and effect of its prior law on the subject and to have intended to accomplish a change therein. Dando v. King County, 75 Wn.2d 598, 452 P.2d 955 (1969).
With this in mind, we finish these preliminary remarks by making note of the legislature's own declaration as to the philosophy of the new act, which is concisely stated in § 1, as follows:
"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 act 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."
[[Orig. Op. Page 4]]
II.The Act in Brief Outline:
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 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 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 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, ordinance or other legislative act, including but not limited to planning commissions, library or park boards, and other boards, commissions and agencies.
[[Orig. Op. Page 5]]
"(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, 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.
"(4) 'Meeting' means meetings at which action is taken."
Sections 4 and 5, together with §§ 7-10, largely detail the procedures to be followed both in calling and in conducting a public meeting under the act; § 11 deals with executive sessions; §§ 12 and 13 provide the remedies for violations of the act; and § 14 enumerates certain exceptions from the act's applicability, all as more fully described below in connection with the various specific questions to be considered in this opinion.
Section 15 contains the repealer of RCW 43.32.010 and 43.32.020,supra; § 16 gives the act its title ‑ the "open public meetings act of 1971"; and § 17 contains an amendment to RCW 34.04.025, the notice requirement section of the state administrative procedures act, which will be noted further below.
Finally, § 18 sets forth the following significant statement with respect to the act's construction:
"The purposes of this 1971 amendatory act are hereby declared remedial and shall be liberally construed."
[[Orig. Op. Page 6]]
III.Questions to be Considered:
As stated at the outset we will, herein, cover not only the particular question which you have raised but, in addition, a number of related questions that have arisen under the new open public meetings act. For organizational purposes, these questions will be discussed under the following five major subject headings:
A. What agencies are covered by the act?
B. To what agency actions or activities is the act directed?5/
C. The procedural requirements of the act.
D. The sanctions or penalties for noncompliance.
E. The specific exemptions which the act contains.
We will proceed through these subjects in the order listed ‑ posing and responding to each question to be considered within the body of the remainder of this opinion.
A.What Public Agencies are Covered?
Under the definition of "public agency" in § 2 (1), it is clear that chapter 250,supra, applies to both state and local governmental units. The first question to be considered, however, is whether an agency headed by a single individual is subject to the act.
While the act defines "public agency" very broadly, all of the references in the operative sections of the act (§§ 3-13) refer to the "governing body" of a public agency. That term defined in § 2 (2) is as follows:
"'Governing body' means the multimember [[Orig. Op. Page 7]] board, commission, committee, council or other policy or rule‑making body of a public agency."
We have no doubt that the adjective "multimember" modifies all the nouns which follow it in this definition. In our opinion neither the structure nor the context of the statute permits any other construction. Furthermore, this is logical and consistent with the over-all purpose of the act, because only a multimember governing body can possess the capability of engaging in and taking the collective sort of "action" which is defined in subsection (3) of § 2, supra.
Thus, we conclude that the act applies to multimember state boards and commissions such as the liquor control board, utilities and transportation commission, highway commission, public employees' retirement board, and the like.6/ At the local level it applies to such groups as boards of county commissioners, city councils, school boards, public utility district boards, etc. On the other hand, where the law governing a particular public agency vests the full responsibility and authority for the agency's decisions in a single individual (e.g., state director of revenue, employment security, social and health services, etc.) the act does not apply, since such individual is not a "governing body," within the definition of the act.7/
[[Orig. Op. Page 8]]
In connection with this conclusion we should, however, add the following two cautionary notes:
First, some agencies which are headed by a single officer may have "subagencies" within the meaning of § 2 (1) (c), as quoted above ‑ which subagencies may, themselves, have a multimember governing body. In that event, the governing body of the subagency would be subject to the act even though the principal agency would not.
Second, we should point out that those state agencies subject to the provisions of the Administrative Procedures Act, chapter 34.04 RCW, are required to give notice in accordance with the open meetings act of the adoption of rules and regulations (see, § 17, discussed below, which amended RCW 34.04.025). This notice requirement applies to any agency irrespective of whether it is headed by a multimember governing body or a single member.
Are advisory committees, boards and commissions subject to the provisions of the open meetings act?
There are in this state a multitude of various statutory and adhoc 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 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 [[Orig. Op. Page 9]] 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. 70 (1916), and cases discussed therein, involving an application of the doctrine of construction commonly referred to as ejusdemgeneris. 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, copy enclosed, wherein we reviewed the relationship between a county planning commission and a board of county commissioners.
When a governing body of a public agency forms a subcommittee composed of members of the governing body, is this subcommittee subject to the provisions of the open public meetings act?
Such a subcommittee is normally not created "by or pursuant to a statute, ordinance or other legislative act" and, therefore, it would not be included within the definition of a public agency. If it is not a "public agency," then even though it has a multimember composition its activities would not be subject to the provisions of the act. However, if the subcommittee membership is such that it comprises a majority of the governing body, then the "subcommittee" would have to be considered as the governing body itself, under the act, and would then be subject to all of the notification and meeting requirements of the act. See, 32 Ops. Cal. AGO 240, andSacramento Newspaper Guild v. Sacramento County Bd. of Supervisors, 69 Cal.Rptr. 480, 486 (Ct. of App. 1968).
Moreover, we would caution against any attempts to avoid the requirements of the act by the delegation of agency functions to a nonstatutory subcommittee not constituting [[Orig. Op. Page 10]] a majority of the members of the governing body. While this might produce an avoidance of the open meetings act, it could also well invalidate the agency's action under the principles of unauthorized delegation of agencies' powers. See,Roehl v. Public Utility Dist. No. 1, 43 Wn.2d 214, 261 P.2d 92 (1953). On the other hand, if the delegation is authorized then, in all probability, the agency to which the power to act for the governing body has been delegated will, itself, thereby become a "governing body" under the act ‑ if it is multimember in composition.
Does the exemption for the legislature also apply to legislative committees?
The definition of "public agency" in § 2 (1), supra, specifically excludes from coverage "courts and the legislature." The legislature is obviously a collective body consisting not only of the house of representatives and the senate, but also of the committees of each of those houses and various interim committees ‑ some of which are joint in nature. The exemption for the legislature is only meaningful if it applies to these committees, both while the legislature is in session and during the interim periods, when in performance of the legislative functions with which they have been vested. See,State ex rel. Hamblen v. Yelle, 29 Wn.2d 68, 185 P.2d 723 (1947);State ex rel. Robinson v. Fluent, 30 Wn.2d 194, 191 P.2d 241 (1948). We therefore conclude that such legislative committees are exempt from the purview of the statute.
On the other hand, there are certain other committees which consist of both legislators and nonlegislators and which perform administrative or executive rather than legislative functions.8/ Such committees cannot, in our judgment, be [[Orig. Op. Page 11]] regarded as a part of the legislature merely because composed, in part, of legislators; therefore, they do not fall within the ambit of the exemption.
B.To What Agency Actions or Activities is the Act Directed?
We will begin our consideration of this general question with our response to the specific inquiry set forth in your opinion request, as follows:
Does the term "meeting" (as used in §§ 3 and 6, supra), include such things as
". . . informal gatherings, briefing sessions, informal discussions, and other meetings where no formal vote is taken . . ."?
The basic thrust of the new act is, of course, directed toward meetings of the governing bodies of public agencies. See, §§ 3 and 6. The term "meeting" is defined by § 2 (4) as "meetings at which action is taken." Thus, if there is no "action" there is not a meeting within the ambit of the act, even though the members of the governing body may be physically in each other's presence. Section 2 (3) defines action as:
". . .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, 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." (Emphasis supplied.)
Two principal observations must be made with regard to this definition. First, it explicitly states that "action" is not limited to the list of examples; hence, the list is clearly not all-inclusive. Second, each of the enumerated [[Orig. Op. Page 12]] examples refers to some form of collective commitment, promise, or the like, for either the present or future transaction of official business.
In posing your question you have directed our particular attention to the California open meetings statute9/ and to the recent decision of the California Court of Appeals inSacramento Newspaper Guild v. Sacramento County Bd. of Supervisors,supra. In that case, the court answeredin the affirmative a question quite similar to that which you have asked us. We shall first review the decision itself, and then comment as to its pertinence with regard to the meaning to be given to the comparable (but not identical) Washington act.
TheSacramento case was precipitated by an informal luncheon meeting of the members of a county board of supervisors, together with certain other public officials and labor union representatives, for the purpose of discussing a pending strike by the county's social workers. The news media sought but was denied access to this meeting, and it thereafter obtained an injunction restraining the board of supervisors and its committees from holding any further closed meetings at which three or more of the five members of the board were present. The appellate court, in substantially affirming the injunction, broadly interpreted the California statute in favor of permitting public access to information ‑ reasoning as follows:
". . . Attempts to define 'meeting' by synonyms or by coupling it with modifying adjectives involve a degree of question-begging. Interpretation requires inquiry into the Brown Act's objective and into the functional character of the gatherings or sessions to which the legislature intended it to apply.
"There is nothing in the Brown Act to demarcate a narrower application than the range of governmental functions performed by the agency. Although the Brown Act artificially classifies it as a legislative body, a board of supervisors actually performs [[Orig. Op. Page 13]] legislative, executive and even quasi-judicial functions. (Chinn v. Superior Court (1909) 156 Cal. 478, 481 [105 P. 580];Fraser v. Alexander (1888) 75 Cal. 147, 152 [16 P. 757].) Section 54950 is a deliberate and palpable expression of the act's intended impact. It declares the law's intent that deliberation as well as action occur openly and publicly. Recognition of deliberation and action as dual components of the collective decision-making process brings awareness that the meeting concept cannot be split off and confined to one component only, but rather comprehends both and either.
"To 'deliberate' is to examine, weigh and reflect upon the reasons for or against the choice. (See Webster's New International Dictionary (3d ed.)) Public choices are shaped by reasons of fact, reasons of policy or both. Any of the agency's functions may include or depend upon the ascertainment of facts. (Walker v. County of Los Angeles (1961) 55 Cal.2d 626, 635 [12 Cal.Rptr. 671, 361 P.2d 247].) Deliberation thus connotes not only collective discussion, but the collective acquisition and exchange of facts preliminary to the ultimate decision." (69 Cal.Rptr. 480, 485.)
And, further on in its opinion, the court expressed itself as follows:
"In this area of regulation, as well as others, a statute may push beyond debatable limits in order to block evasive techniques. An informal conference or caucus permits crystallization of secret decisions to a point just short of ceremonial acceptance. There is rarely any purpose to a nonpublic pre‑meeting conference except to conduct some part of the decisional process behind closed doors. Only by embracing the collective inquiry and discussion stages, as well as the ultimate step of official action, can an open meeting regulation frustrate these evasive devices. As operative criteria, [[Orig. Op. Page 14]] formality and informality are alien to the law's design, exposing it to the very evasions it was designed to prevent. Construed in the light of the Brown Act's objectives, the term 'meeting' extends to informal sessions or conferences of the board members designed for the discussion of public business. The Elks Club luncheon, attended by the Sacramento County Board of Supervisors, was such a meeting." (Page 487.)
Similar interpretations of the California statute have consistently been made by the California attorney general. See, e.g., AGO No. 59-180 (October 4, 1960), discussed further below, wherein it was concluded that consultations between a city council and the city attorney regarding the legal implications of proposals before the council must take place in open session. Likewise, in AGO No. 63-79 (September 24, 1963), it was concluded that council meetings with the city manager, planning director and city attorney must be treated as public meetings even though the council members may not have intended to act at the time they were conferring. And in AGO 63-82 (January 22, 1964), it was stated that luncheons attended by a city council and others to discuss items of interest to the city are subject to the California act.
Because the California act was not copied verbatim by the Washington legislature, neither the court decision in the Sacramento case nor the interpretation placed on that act by the attorney general comes squarely within the purview of the rule enunciated by our own court inJackson v. Colagrossi, supra, that
". . . the adoption of a statute of another state likewise carries with it the construction placed upon such statute by the courts of that state. . . ."
However, these California authorities are, nevertheless, quite persuasive in view of the over-all similarities between our act and the California act. Initially to be noted is § 54950, the first codified section of the California act, which is identical to § 1, the "declaration of purpose" section of our act which is quoted at the beginning of this opinion. This section, it will be recalled, states, in material part:
[[Orig. Op. Page 15]]
". . . It is the intent of this act that their [i.e., governing bodies] actions be taken openly and that their deliberations be conducted openly." (Emphasis supplied.)
Secondly, although the term "meeting" is not defined in California's act, the term "action taken" is ‑ as follows:
"As used in this chapter, 'action taken' means a collective decision made by a majority of the members of a legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a positive or a negative decision, or an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order or ordinance."
The only difference between this definition and our definition of "action,"supra, is that ours includes, at the outset, the additional phrase "'Action' meansthe transaction of the official business of a public agency including but not limited to. . ." (Emphasis supplied) the list of activities set forth in the California statute. To this extent, it thus seems apparent that the definition of "action" in the Washington statute is broader than that in the California statute. The Washington definition is open-ended, in that it includes but is not limited to a list of examples. In contrast, the California statute makes a complete listing of what constitutes action.
Thirdly, although (as discussed further below) the California act does not purport to invalidate final agency actions which have been taken in violation of the act as does our § 6, supra, it does contain a penalty section comparable to our § 12 (also discussed below); see, § 54959, which provides:
"Each member of a legislative body who attends a meeting of such legislative bodywhere action is taken in violation of any provision of this chapter, with knowledge of the fact that the meeting is in violation thereof, is guilty of a misdemeanor."10/ (Emphasis supplied.)
[[Orig. Op. Page 16]]
Because the California court in the Sacramento case, supra, was merely reviewing an injunction action rather than a criminal prosecution under this section,11/ it might be suggested that the court did not there reach the question of whether the type of meeting against which the injunction was obtained was one "where action is taken" ‑ thus rendering the case inapplicable in terms of assisting us in interpreting our own similar definition of "action" in § 2 (3), supra. However, this argument overlooks the emphasis which the California court, in distinguishing the earlier case of Adler v. City Council of City of Culver City, 184 C.A.2d 763 [[184 Cal.App.2d 763]], 7 Cal.Rptr. 805 (1960), placed on the fact that the "action taken" definition had been added to the original (1953) act by a 1961 amendment. See, 263 C.A.2d at 46 [[263 Cal.App.2d 46]](69 Cal.Rptr. 480), where the court said:
"Although all five of the county supervisors were present at the Elks Club luncheon on February 8, 1967, and although the subject or discussion was a matter of county governmental interest, defendants contend that the trial court erred in viewing it as a meeting within the scope of the Brown Act. They rely uponAdler v. City Council of Culver City, supra, 184 Cal.App.2d at pp. 770-774, which held the statute applicable only to formal meetings for the transaction of official business, inapplicable to informal sessions. The Newspaper Guild, on the other hand, argues that the 1961 amendments of the Brown Act were designed to nullify the Adler decision. (See 42 Ops. Cal.Atty. Gen. 61 (1963); Comment, Access to Governmental Information in California, 54 Cal. L. Rev. 1650, 1653-1655 (1966); cf. Herlick, California's Secret Meeting Law, 37 State Bar J. 540 (1962)."
[[Orig. Op. Page 17]]
In approving of the trial court's entry of the injunction the court of appeals, in effect, agreed with the plaintiff Newspaper Guild and rejected the defendant's reliance on the earlier (pre‑1961) Adler case. In other words, even though the court in Sacramento was not reviewing a criminal proceeding under § 54959,supra, it nevertheless very clearly did base its decision that the informal meeting in question was violative of the act upon the proposition that by its addition of the broadly defined term "action taken," the legislature had manifested an intent to overcome the Adler decision and to make the act applicable to such meetings.12/
It is for all of these reasons that, while not binding (as aforesaid), we regard this California decision, along with the above‑noted attorney general's opinions, as being quite persuasive in terms of the interpretation to be given to our own act. In addition, we note that the California result is very similar to that which has been reached in Florida under that state's open meetings act.
The Florida statute (Fla. Stats. § 286.11) requires that "all meetings . . . at which official acts are to be taken" must be open public meetings. Like that of California, the Florida courts have broadly read this statute so as to permit public access to the meetings of public agencies. InTimes Publishing Company v. Williams, 222 So.2d 470 (1969), a Florida court of appeals expressed itself as follows:
"Every thought, as well as every affirmative act, of a public official as it relates to and is within the scope of his official duties, is a matter of public concern; and it is the entire decision-making process that the legislature intended to affect by the enactment of the statute before us. This act is a declaration of public policy, the frustration of which constitutes irreparable injury to the public interest. Every step in the decision-making process, including the decision itself, is a necessary preliminary to formal action. It follows that each such step constitutes an 'official act,' an indispensable requisite to 'formal action,' within the meaning of the act.
[[Orig. Op. Page 18]]
"We think then that the legislature was obviously talking about two different things by the use of these phrases, and we can't agree with appellee that 'official acts' are limited to 'formal action,' or that they are synonymous. Clearly the legislature must have intended to include more than the mere affirmative formal act of voting on an issue or the formal execution of an official document. These latter acts are indeed 'formal,' but they are matters of record and easily ascertainable (though perhaps ex post facto), notwithstanding such legislation; and indeed the public has always been aware sooner or later of how its officials voted on a matter, or of when and how a document was executed. Thus, there would be no real need for the act if this was all the framers were talking about. It is also how and why the officialsdecided to so act which interests the public. Thus, in the light of the language in Turk, supra, and of the obvious purpose of the statute, the legislature could only have meant to include therein theacts of deliberation, discussion and deciding occurring prior and leading up to the affirmative 'formal action' which renders official the final decisions of the governing bodies.
"It is our conclusion, therefore, that with one narrow exception which we will discuss later, the legislature intended the provisions of Chapter 67-356 to be applicable to every assemblage of a board or commission governed by the act at which any discussion, deliberation, decision, or formal action is to be had, made or taken relating to, or within the scope of, the official duties or affairs of such body. . . ."
The Florida Supreme Court inBoard of Public Instruction of Broward Co. v. Doran, 224 S.2d 693 [[224 So.2d 693]], 699 (1969), has indicated essentially this same view, and the Florida attorney general has issued numerous opinions similar to those of the California attorney general; these include Florida AGO No. 071-59 (June 17, 1971) and No. 071-32 (March 3, 1971).
[[Orig. Op. Page 19]]
In the final analysis, we can simply discern no likelihood that our court, when called upon to consider the scope of the new Washington open meetings act, will take any narrower view than have the courts and attorneys general in California and Florida. The similarities between the respective acts, both in terms of policy and technical content, far outweigh such dissimilarities which exist.
Therefore, directing ourselves to your question as above set forth, it is our considered opinion that if a majority of the members of a governing body should meet, even informally, in order to consider matters which are within the ambit of the agency's official business, then there will occur a "meeting at which action is taken" under the Washington act. From this it follows that such informal meetings as you have described are subject to the provisions of the Washington open meetings act.
With this broad interpretation of "action" there will obviously be some concern expressed by members of the various governing bodies about their attendance at the same social functions. However, nothing in the act purports to regulate or condition strictly the attendance at such functions. A social function would only be reached under the act if it is scheduled or designed (at least in part) for the purpose of having the members of the governing body discuss official business either between themselves or with other interested parties. As stated by the California Court of Appeals in Sacramento Newspaper Guild, supra, in a footnote on page 50 (quoting from a comment appearing in 54 Cal. Law Rev. 1650-51):
"'There is a spectrum of gatherings of agency members that can be called a meeting, ranging from formal convocations to transact business to chance encounters where business is discussed. However, neither of these two extremes is an acceptable definition of the statutory word "meeting." Requiring all discussion between members to be open and public would preclude normal living and working by officials. On the other hand, permitting secrecy unless there is formal convocation of a body invites evasion.' Although one might hypothesize quasi-social occasions whose characterization as a meeting would be debatable, the difference between a social [[Orig. Op. Page 20]] occasion and one arranged for pursuit of the public's business will usually be quite apparent." (Emphasis supplied.)
Are consultations with legal counsel subject to the act?
There is no specific exemption in the open public meetings act for consultations with legal counsel. However, the state of Washington does have a privileged communications statute, RCW 5.60.060, which provides in subsection (2):
"An attorney or counselor shall not, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment."
Subsection (5) provides:
"A public officer shall not be examined as a witness as to communications made to him in official confidence, when the public interest would suffer by the disclosure."
Several years ago the California attorney general, in AGO No. 59-180 (October 4, 1960),supra, stated:
"City councils are engaged regularly in deliberating or acting upon ordinances, regulations, etc., where the legal implications of the subject matter are as important for a proper decision as factual or any other information in order to form an intelligent and proper decision. Thus, the city attorney may be called upon to explain the legality or legal implications of a proposal before the council. In such instances the public has a right to know all of the factors considered by the council, including the legal advice, if any, received. The public is entitled to know all of this in order to assure that the representatives are acting in what it considers to [[Orig. Op. Page 21]] be the public good. It is the sense of the Brown Act that such types of meetings be open to the public.
"However, there is no indication in the language used in the Brown Act that its purpose is to grant in any fashion an advantage to an adversary of the people. It is one thing to require public meetings so that the public be informed about the deliberations as well as the actions of its representatives and quite another to deliberately give an advantage to an adversary of the people by extending the word 'meeting' used in the act to include every conference between a city council and its city attorney which, if open, would not be to the people's interest but to the interest of the people's adversary. It would seem that before interpreting the sections to include such a conference the Legislature should clearly say so in unequivocal language."
The same conclusions were reached by the California court of appeals inSacramento Newspaper Guild, supra, at p. 489, wherein the attorney-client privilege was discussed as follows:
". . .The objective is to enhance the value which society places upon legal representation by assuring the client full disclosure to the attorney unfettered by fear that others will be informed. . . . If client and counsel must confer in public view and hearing, both privilege and policy are stripped of value. Considered in isolation from the Brown Act, this assurance is available to governmental as well as private clients and their attorneys.
". . .
". . .Public agencies are constantly embroiled in contract and eminent domain litigation and, with the expansion of public tort liability, in personal injury and property [[Orig. Op. Page 22]] damage suits. Large‑scale public services and projects expose public entities to potential tort liabilities dwarfing those of most private clients. Money actions by and against the public are as contentious as those involving private litigants. The most casual and naive observer can sense the financial stakes wrapped up in the conventionalities of a condemnation trial. Government should have no advantage in legal strife; neither should it be a second-class citizen. We reiterate what we stated in the supersedeas aspect of this suit, Sacramento Newspaper Guild v. Sacramento County Bd. of Supervisors, supra, 255 A.C.A. at page 74, 62 Cal.Rptr. at page 821 [[255 C.A.2d 51, 62 Cal.Rptr. 819]]: 'Public agencies face the same hard realities as other civil litigants. An attorney who cannot confer with his client outside his opponent's presence may be under insurmountable handicaps. A panoply of constitutional, statutory, administrative and fiscal arrangements covering state and local government expresses a policy that litigating public agencies strive with their legal adversaries on fairly even terms. We need not pause for citations to demonstrate the obvious. There is a public entitlement to the effective aid of legal counsel in civil litigation. Effective aid is impossible if opportunity for confidential legal advice is banned.'
"Settlement and avoidance of litigation are particularly sensitive activities, whose conduct would be grossly confounded, often made impossible, by undiscriminating insistence on open lawyer-client conferences. In settlement advice, the attorney's professional task is to provide his client a frank appraisal of strength and weakness, gains and risks, hopes and fears. If the public's 'right to know' compelled admission of an audience, the ringside seats would be occupied by the government's adversary, delighted to capitalize on every revelation of weakness. . . ." (Emphasis supplied.)
[[Orig. Op. Page 23]]
The Florida court of appeals in Times Publishing Co., supra, reached a similar conclusion on a different rationale.
In light of the privileges set forth in RCW 5.60.060, supra, and the interpretation of the California act which is substantially the same as ours, we would conclude that there remains a modified attorney-client privilege for the governing body of a public agency in this state. This privilege cannot be asserted by the body for all legal advice which it receives, particularly that which fits within the concept of deliberations of the body. However, those sensitive areas of legal advice, particularly with reference to pending or contemplated litigation, settlement offers and similar matters, can, in our opinion, be discussed between the governing body and its attorney in a closed session.
Are labor negotiations subject to the provisions of the open public meetings act?13/
If the collective bargaining negotiations are conducted by a body which is not a "governing body" as previously discussed in this opinion, then the act does not apply. For example, when one or two members of a five‑member governing body are designated as a negotiating committee, then their activities in this capacity are not subject to the act. However, the final adoption or ratification of the collective bargaining agreement itself would, of necessity, be by the governing body ‑ and thus, that adoption or ratification would have to be at a public meeting. The problem of negotiating in a "fishbowl" will, therefore, only be present when the negotiating group is a governing body or at least a majority thereof. Accord, the following discussion between Representatives Thompson and Grant during debate on final passage of Senate Bill No. 485 in the House of Representatives on May 10, 1971:
[[Orig. Op. Page 24]]
"POINT OF INQUIRY
"Mr. Thompson yielded to question by Mr. Grant.
"Mr. Grant: 'Mr. Thompson, for the purposes of the record and the journal, is there anything in this act as far as you can tell that would prohibit closed sessions for the purpose of negotiating contracts of any public body?'
"Mr. Thompson: 'Not, Representative Grant, if they are conducted by representatives of the governing body of a public agency. When, following the conclusion of negotiations, the recommendations of negotiators are brought to the governing body for approval, this should be done, under the provisions of this act, in public.'"
As will be noted further below in dealing with the act's exemptions, the legislature has provided no exemption for negotiations in collective bargaining in our act ‑ although one was proposed during proceedings in the House of Representatives on April 20, 1971.14/ Furthermore, there is no provision in any other Washington law specifically creating any form of privilege for these collective bargaining negotiations. In both of these respects we are in the same situation as are Florida and California.
In the first of these two states we are aware of two authorities which have considered this question: (1) A trial court, and (2) the Florida attorney general. The [[Orig. Op. Page 25]] first was the trial court opinion inBassett v. Braddock, No. 71-1462, Cir. Ct. of 11th Judicial Dist., Dade County, Florida, dated March 25, 1971. In that case the court found that the conduct of collective bargaining negotiations in a public fishbowl would seriously undermine the entire process and would place the public agency and taxpayers at a distinct disadvantage in the process. Therefore, it permitted closed-door negotiations. During the same month the Florida attorney general, however, in opinion No. 071-32 (March 3, 1971), found that although there may be a need for closed-door collective bargaining, no provision had been made for it in the law and therefore it would require legislative action to permit such activity.
The California attorney general, in AGO 68-77 (October 8, 1968), has concluded that collective bargaining negotiations which involve a conciliation proceeding may be conducted behind closed doors. The basis for that conclusion was that the California Labor Code, § 65, makes the records of a conciliation proceeding by the director of industrial relations confidential. The attorney general concluded that this confidentiality would apply even if a participant in the conciliation proceeding was a public agency governed by the open meetings act.
However, by the limited nature of this response it is apparent that the attorney general of California considered other collective bargaining negotiations by a governing body to be subject to the open meetings law. While we may question the public policy requiring collective bargaining negotiations by governing bodies to be conducted in a fishbowl, nevertheless we believe that this conclusion is required by the existing law as passed by the legislature.
What is a regular meeting and what notification is required for regular meetings?
We have earlier seen that § 6 of the open public meetings act provides that:
[[Orig. Op. Page 26]]
"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."
To be read in conjunction with this section are §§ 7 and 8 dealing, respectively, with "regular" meetings of a governing body ("the date of which is fixed by law or rule") and "special" meetings ("a meeting of which notice has been given according to the provisions of this act"). We shall deal, first, with § 7, which provides:
"The governing body of a public agency shall provide the time for holding regular meetings by ordinance, resolution, bylaws, or by whatever other rule is required for the conduct of business by that body. Unless otherwise provided for in the act under which the public agency was formed, meetings of the governing body need not be held within the boundaries of the territory over which the public agency exercises jurisdiction. If at any time any regular meeting falls on a holiday, such regular meeting shall be held on the next business day. If by reason of fire, flood, earthquake, or other emergency, it shall be unsafe to meet in the place designated, the meetings may be held for the duration of the emergency at such place as is designated by the presiding officer of the governing body: PROVIDED, That the notice requirements of this act shall be suspended during such emergency."
In essence, this statute (along with § 6) defines a regular meeting as one "the date of which is fixed by law or rule" (§ 6) and with regard to which the governing body has [[Orig. Op. Page 27]] provided ". . . the time for holding . . . by ordinance, resolution, bylaws, or by whatever other rule is required for the conduct of the business by that body. . . ."
Except to the extent required by § 9 (discussed below), relating to adjournments and by § 17 involving rule‑making proceedings under the state Administrative Procedures Act (Title 34 RCW), the act contains no notice requirements for a regular meeting of the governing body of an agency. That omission is consistent with the prior statute, RCW 42.32.010, which only required notification of those meetings which were not held at a regularly scheduled time. It is in light of this exemption from specific notification requirements that the term "shall provide the time for holding regular meetings" appearing in § 7 is to be considered.
We do not read this provision as requiring all governing bodies of public agencies to hold regular meetings; instead, consistent with the terms of § 6, whether or not they do will be dependent upon the "law or rule" (including the agency's own rules) which governs each separate agency. What § 7does mean, in our opinion, is that if a particular governing body does hold regular meetings on a date fixed by law or rule, it must identify a time for such meetings by ordinance, resolution, etc. ‑ and not, for example, by word of mouth or informal memo among the members or the like.
In this connection it is notable that there is no sanction in the act for a failure to establish a regular meeting schedule. However, it is to be understood that the consequence of failing to do so is to makeall meetings of the agency's governing body "special" meetings subject to the notice requirements of § 8 of the act, next to be considered.
What are the notice requirements for a special meeting?
Section 8 of the act covers this subject as follows:
"A special meeting may be called at any time by the presiding officer of the governing body of a public agency or by a majority of the members of the governing body by [[Orig. Op. Page 28]] delivering personally or by mail written notice to each member of the governing body; and to each local newspaper of general circulation and to each local radio or television station which has on file with the governing body a written request to be notified of such special meeting or of all special meetings. Such notice must be delivered personally or by mail at least twenty-four hours before the time of such meeting as specified in the notice. The call and notice shall specify the time and place of the special meeting and the business to be transacted. Final disposition shall not be taken on any other matter at such meetings by the governing body. Such written notice may be dispensed with as to any member who at or prior to the time the meeting convenes files with the clerk or secretary of the governing body a written waiver of notice. Such waiver may be given by telegram. Such written notice may also be dispensed with as to any member who is actually present at the meeting at the time it convenes. The notices provided in this section may be dispensed with in the event 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 time requirements of such notice would make notice impractical and increase the likelihood of such injury or damage."
Under this statute there are two separate categories of notice; one involving notice to the members of the governing body itself, and the other relating to notice to certain news media. We will discuss these two categories in that order.
(a)Notice to the Members:
Section 8,supra, requires that a written notice be sent to each member of the governing body of a public agency at least twenty-four hours in advance of the time of a special meeting. [[Orig. Op. Page 29]] Such notice must indicate the time and place of the meeting and the business there to be transacted. The description of the business to be transacted is important because, although the governing body may discuss other matters, it is specifically precluded by § 8 from making any final disposition of those matters which are not included within the description of the business to be transacted.15/
Under § 8, this written notice to the members of the governing body may be waived in two ways: First, any individual member may, in writing at or prior to the time of the meeting, waive notification. This written waiver can either be for a specific meeting or for a continuing series of meetings. Secondly, a member who is actually present at a meeting when it convenes waives the written notification requirements of § 8, for we read this section as automatically resulting in a waiver by physical appearance.
(b)Notice to News Media:
The same notice as is to be given to the members of the governing body also must be given at the same time and in the same manner
". . . to each local newspaper of general circulation and to each local radio or television station which has on file with the governing body a written request to be notified of such special meeting or of all special meetings. . . ."
This sentence structure raises an ambiguity as to whether the condition of a written request for notification applies only to local television and radio stations, or to local newspapers as well. On the one hand, applying a technical rule [[Orig. Op. Page 30]] of grammar and of statutory construction known as the "last antecedent" rule, a conclusion could well be reached that only the local radio and television stations are required to ask for notice, and that local newspapers are to receive it automatically. See,Davis v. Gibbs, 39 Wn.2d 481, 236 P.2d 545 (1951);Schneider v. Forcier, 67 Wn.2d 161, 406 P.2d 935 (1965). However, this rule is by no means conclusive, as the above authorities recognize. Moreover, were it to be applied here the result would be that each agency governed by the act would be put to the task, before every special meeting, of deciding which newspapers are "local" ‑ and hence entitled to notice ‑ and which are not. Should this term be construed to cover only the newspapers published in the immediate city or county in which the agency is located or should it be taken to cover those published in the area in which the agency meeting is held? Or, possibly, would it include all local newspapers and radio stations within the state, or (even more broadly) a multistate region such as the Inland Empire?
While arguments may be framed to answer these questions ‑ perhaps in terms of the territorial jurisdiction of the particular agency, whether statewide or merely county, district or city-wide ‑ the risk of error, primarily that of omission, leads us to reject this approach to the statute. Instead, it appears to us that the most reasonable way to resolve this ambiguity is to read the written request requirement as applying to all three categories of news media ‑ radio, television and newspapers. By reading the statute in this manner, we avoid uncertainty as to which newspapers are entitled to notice of a meeting ‑ concluding instead that any newspapers of general circulation in the area served by the agency, like any such radio or television stations, can obtain notice of those meetings in which they are interested by simply requesting it. Conversely, the agency involved can very easily maintain a file containing such requests and know with certainty who it must notify. Notification to those who have requested it can then be made almost automatically before each special meeting of the subject agency, and compliance with the notification requirements of § 8, supra, will not present a problem.
Lastly, it is to be noted that the written notification of [[Orig. Op. Page 31]] special meetings can be dispensed with by an agency when there is
". . . an emergency involving injury or damage to persons or property or the likelihood of such injury or damage, when time requirements of such notice would make notice impractical and increase the likelihood of such injury or damage."
Are the governing bodies required to give notice to persons other than the news media or members of the body?
The act onlyrequires that the governing body give notice of its special meetings to the newspapers and radio and television stations which have requested to be notified and to members of the governing body itself. There is no affirmative obligation to give notice to other persons or groups ‑ although we would hasten to add that, conversely, there is nothing in the statute which would preclude the body from giving such notices.
In addition, depending upon what action the agency is planning to take at its meeting, there may be special notification requirements in other statutes or ordinances dealing with the particular body. Those notice requirements, of course, will still have to be complied with regardless of the requirements of the open public meetings act itself. For example, under the state Administrative Procedures Act, RCW 34.04.025 (which was amended by § 17, chapter 250,supra), all state agencies are required to mail a notice to all persons who have made a timely request for advance notification of rule making by the agency. There is a similar requirement under the higher education administrative procedures act, § 3, chapter 57, Laws of 1971, 1st Ex. Sess.
Are adjournments permitted? If so, what notification requirements are applicable?
[[Orig. Op. Page 32]]
Section 9, chapter 250,supra, expressly permits the agency to adjourn any of its meetings, regular or special, as follows:
"The governing body of a public agency may adjourn any regular, adjourned regular, special or adjourned special meeting to a time and place specified in the order of adjournment. Less than a quorum may so adjourn from time to time. If all members are absent from any regular or adjourned regular meeting the clerk or secretary of the governing body may declare the meeting adjourned to a stated time and place. He shall cause a written notice of the adjournment to be given in the same manner as provided in section 8 of this act for special meetings, unless such notice is waived as provided for special meetings. Whenever any meeting is adjourned a copy of the order or notice of adjournment shall be conspicuously posted immediately after the time of the adjournment on or near the door of the place where the regular, adjourned regular, special or adjourned special meeting was held. When a regular or adjourned regular meeting is adjourned as provided in this section, the resulting adjourned regular meeting is a regular meeting for all purposes. When an order of adjournment of any meeting fails to state the hour at which the adjourned meeting is to be held, it shall be held at the hour specified for regular meetings by ordinance, resolution, bylaw, or other rule."
The notice requirements to be met under this section may be summarized as follows:
(1) If the meeting was a regular or an adjourned regular meeting and was adjourned by the clerk or secretary of the governing body because all of the members were absent, the clerk or secretary is to give the written notice of the adjourned meeting to the members of the body and news media [[Orig. Op. Page 33]] as is required by § 8, discussed above, with regard to special meetings; and
(2) In addition, in the case of any adjournment (whether of a regular or special meeting), a copy of the order of adjournment must be posted immediately after the adjournment near the door where the meeting was being held, setting forth the time and place at which the meeting will reconvene.
Another provision relating to adjournments is to be found in § 5 of the act, dealing with disturbances and the removal of individuals who are disrupting a meeting; however, this statute is more germane to the question of exclusions of persons from a meeting and will be considered later in this opinion under that heading.16/
Lastly, with regard to this question, note should also be made of § 10 of the act, dealing with the continuance of hearings, which provides as follows:
"Any hearing being held, noticed, or ordered to be held by a governing body at any meeting may by order or notice of continuance be continued or recontinued to any subsequent meeting of the governing body in the same manner and to the same extent set forth in section 9 of this act for the adjournment of meetings."
Are executive sessions permitted? If so, what are the notification requirements?
Section 11 of the act deals with this subject, as follows:
"Nothing contained in this act shall be construed to prevent a governing body from holding executive sessions during a regular [[Orig. Op. Page 34]] or special meeting to consider matters affecting national security; the selection of a site or the purchase of real estate, when publicity regarding such consideration would cause a likelihood of increased price; the appointment, employment, or dismissal of a public officer or employee; or to hear complaints or charges brought against such officer or employee by another public officer, person, or employee unless such officer or employee requests a public hearing. The governing body also may exclude from any such public meeting or executive session, during the examination of a witness on any such matter, any or all other witnesses in the matter being investigated by the governing body."
Thus, the act specifically permits the holding of executive sessions which are sessions closed to the public. However, the subject matter of those sessions is limited to the following:
(1) Matters affecting national security;
(2) The selection of a site or the purchase of real estate when publicity regarding such consideration would cause a likelihood of increased price;
(3) The appointment, employment or dismissal of a public officer or employee or to hear complaints or charges brought against such officer or employee by another public officer, person or employee unless such officer or employee requests a public hearing.
If the subject matter to be considered by the public agency falls within one of these three categories, there can be an executive session of its governing body. However, this executive session can only be held "during a regular or special meeting." If an executive session is held in conjunction with a regular meeting it thus follows that there are no notification requirements since, as previously discussed, there are no notice requirements for the regular meeting itself. However, if the executive session is held in conjunction with a special meeting, then the notice requirements for special meetings are, in our judgment, applicable. [[Orig. Op. Page 35]] Accord, California AGO 63-133 (February 18, 1964), wherein § 54957 of the California Government Code, which is virtually the same as § 11, chapter 250,supra, was considered.17/ Nevertheless, since it would obviously defeat the purpose of this statutory permission for executive sessions if explicit notice was required as to what would be considered during such a session, we would conclude that it is sufficient that the agency simply state in the notice of the special meeting that it plans, for example, to consider the selection of a site, or the employment of an officer, etc., without giving further details. Unless it thus gives notice of the subject matter to be considered in executive session, the governing body will be precluded by § 8, supra, from taking any final action thereon.
Can there be qualifications placed on the public's attendance at a public meeting?
The general answer to this question is that there cannot be qualifications established for attendance at a public meeting. Section 4 of chapter 250,supra, specifically states that:
"A member of the public shall not be required, as a condition to attendance at a meeting of a governing body, to register his name and other information, to complete a questionnaire, or otherwise to fulfill any condition precedent to his attendance."
It is to be noted that this section is identical to § 54953.3 of the California Government Code, which was recently construed by the California Court of Appeals inBaron v. City of Los Angeles, 82 Cal.Rptr. 515 (1969). In that case the court concluded that there was no conflict between a lobbyist registration requirement and the California open meetings act. The court specifically recognized that registration could not be required for physical presence at a public meeting, but held that a lobbyist registration requirement [[Orig. Op. Page 36]] involved a registration of those who are representing others to influence municipal action, and not merely a registration of lobbyists for their own physical presence at a public meeting.
Our legislature has also recognized that some individuals may attend a public meeting for the purpose of disrupting the public meeting. By § 5 of chapter 250,supra, it has provided that:
"In the event that any meeting is interrupted by a group or groups of persons so as to render the orderly conduct of such meeting unfeasible and order cannot be restored by the removal of individuals who are interrupting the meeting, the members of the governing body conducting the meeting may order the meeting room cleared and continue in session or may adjourn the meeting and reconvene at another location selected by majority vote of the members. 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."
This section specifically recognizes the authority of a governing body to have individuals removed who are disrupting its meeting, and, if need be, to adjourn the meeting to another location. In the event of such an adjournment or continuance, representatives of the news media are to be permitted to attend unless they were among those participating in the disturbance. By virtue of § 5,supra, it is also clear that our 1969 criminal trespass statute (RCW 9.83.080) can be invoked to protect meetings held under the open public meetings act.
[[Orig. Op. Page 37]]
Can the members of the governing body vote by secret ballot at a public meeting?
The open public meetings act states in § 1,
". . . The people insist on remaining informed so that they may retain control over the instruments they have created."
A secret ballot would defeat the accountability of individual members of the governing body to the public since their vote would be an "anonymous" vote. We would therefore conclude that a secret ballot is not permissible and would note that this conclusion is in accord with the opinion of the Florida attorney general, opinion No. 071-32, issued on March 3, 1971.
Are members of a governing body of a public agency personally liable for violations of the act of which they have knowledge?
Some states having open meeting acts provide for both a criminal sanction and injunctive relief.18/ The Washington act makes no provision for criminal sanctions; instead, our act only provides for the imposition of civil penalties against members of the governing bodies knowingly involved in a violation of its requirements. See, § 12, which reads as follows:
"Each member of the governing body who attends a meeting of such governing body where action is taken in violation of any [[Orig. Op. Page 38]] provision of this act applicable to him, with knowledge of the fact that the meeting is in violation thereof, shall be subject to personal liability in the form of a civil penalty in the amount of one hundred dollars. The civil penalty shall be assessed by a judge of the superior court and an action to enforce this penalty may be brought by any person. A violation of this act does not constitute a crime and assessment of the civil penalty by a judge shall not give rise to any disability or legal disadvantage based on conviction of a criminal offense. Reasonable expenses, including attorney's fees, shall be awarded the person bringing the action if the suit results in assessment of the civil penalty. The members held to be in violation shall be personally liable only for their pro rata share of the expenses."
However, beyond this penalty itself it is important to note that, in order to provide an enforcement mechanism the legislature has provided in § 12 that if any person institutes an action to enforce the civil penalty therein provided for, and the court imposes this penalty, then the plaintiff shall be awarded the reasonable expenses of the suit, including attorney's fees. Furthermore, those members of the particular governing body found to be in violation will be personally liable for their pro rata share of those expenses.
Who has standing to commence a mandamus or injunction action under the act?
Section 13 of the act clearly provides that:
"Any person may commence an action either by mandamus or injunction for the purpose of stopping violations or preventing [[Orig. Op. Page 39]] threatened violations of this act by members of a governing body."19/ (Emphasis supplied.)
What is the effect of action taken in violation of the act?
Section 6,supra, provides:
". . . Any action taken at meetings failing to comply with the provisions of thissection shall be null and void." (Emphasis supplied.)
This section incorporates by internal reference all of the notification and public meeting requirements of the act. There is no comparable provision in the California act. Moreover, we are informed that the California legislature has, in the past, rejected such a provision.20/
The Florida open meetings law in § 286.011 (1) provides that if action covered by the act is taken at a nonpublic meeting, that action shall not "be considered binding." The attorney general of Florida in AGO 071-32 (issued on March 3, 1971), has concluded that this provision would render actions taken in violation of the act voidable but not void. In other words, it would require one to commence a court lawsuit in order to void the agency's act. Of course,as a [[Orig. Op. Page 40]] practical matter this same result would occur under our act if the agency involved refused, itself, to acknowledge that its action was null and void; i.e., the action would be subject to being voided by the court, either in a direct or collateral attack.
However, if thefinal action taken by the public agency is in accordance with our open public meetings act requirements, then it would appear to us that this action would be defensible even though there may have been a failure to comply with the act earlier during the governing body's preliminary consideration of the subject. For example, if the members of the governing body had held an earlier meeting to discuss a certain proposal without complying with the act, but did comply in connection with the meeting at which the actual adoption of the proposal took place, the final action thus taken would be defensible.21/
E. Specific Statutory Exemptions:
Section 14 of the act provides for three exemptions from its provisions, as follows:
". . . That 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 [[Orig. Op. Page 41]] device or motor vehicle where a license or registration is necessary; of
"(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
"(3) matters governed by Title 34 RCW, the administrative procedures act, except as expressly provided in section 17 of this 1971 amendatory act."
These exemptions apply even if the body is a governing body and its activities would constitute action. By virtue of these exemptions, the governing body is not obligated to comply with the notice requirements of the act (except as provided for in § 17, discussed below, where applicable) nor to hold its meetings open to the public where an exemption applies.
Are business, occupational and professional licensing exempted from the act?
This is covered by § 14 (1), supra. We read the reference to "proceedings" as encompassing the entire ambit of activities, including the application, examinations, interviews, hearings, etc., which are related to business, occupational and professional licenses. This subsection also exempts licenses for sports activities, motor vehicles and mechanical devices.
Are meetings of a quasi-judicial body to consider quasi-judicial matters exempted from the act?
Section 14 (2) specifically provides an exemption for:
[[Orig. Op. Page 42]]
"(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
". . ."
The term "quasi-judicial" is ordinarily used to describe 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 isCanney v. Board of Public Instruction of Alachua Co., 231 S.2d 34 [[231 So.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. Accord, memorandum opinion dated June 30, 1971, to E. B. Rogel, Director of the State Teachers' Retirement System, wherein we said:
"The board of trustees of the Washington State Teachers' Retirement System when acting upon an individual's application for disability benefits does so in a quasi-judicial capacity. Therefore, when the board acts in this capacity its actions [[Orig. Op. Page 43]] would be exempt from the public meeting statute under § 14 (2) which exempts that portion of a public meeting which is of a quasi-judicial character since it constitutes consideration of a matter between a named party and the board, as distinguished from a matter having general affect on the public or on a class or group."
Are proceedings under the State Administrative Procedures Act, Title 34 RCW, subject to the provisions of the open public meetings act?
Section 14 (3),supra, specifically excludes from the act:
"(3) matters governed by Title 34 RCW, the administrative procedures act, except as expressly provided in section 17 of this 1971 amendatory act."
Title 34 RCW only applies to state agencies and it regulates both their conduct of contested cases and their adoption of rules and regulations. Section 17 of the open public meetings act specifically amends the notice requirements for the adoption of rules and regulations as contained in RCW 34.04.025. By virtue of the exemption provided by § 14 (3), the governing body of a public agency, when acting in accordance with Title 34 RCW, can meet in closed sessions to conduct their deliberations, whether they be on a contested case or for the consideration of the adoption of a rule. However, the actual adoption of a rule, by virtue of the provisions of Title 34 RCW, itself,22/ must occur at a public meeting.
[[Orig. Op. Page 44]]
During the last session of the legislature a separate administrative procedures act was created for the higher educational institutions. That act is chapter 57, Laws of 1971, 1st Ex. Sess. Since § 18 of that act provides that it shall be made a part of Title 28B RCW, institutions acting under that new law will apparently not be entitled to the exemption provided by § 14 (3), supra, in the absence of future action by the legislature.
We trust the foregoing will be of assistance to you.
*** FOOTNOTES ***
1/Chapter 216, Laws of 1953, codified as chapter 42.32 RCW.
2/Government Code, §§ 54950 ‑ 54961 and 11120, et seq.
3/Fla. Stat. 286.011, et seq.
4/This section, notably, remains in effect today, whereas the provisions of §§ 1 and 2 have been expressly repealed by § 15, chapter 250, Laws of 1971, 1st Ex. Sess.
5/Under this heading you will find our response to the specific question which you posed, relating to informal get-togethers of governing bodies, etc.
6/Accord, letter dated September 2, 1971, to State Senator Jonathan Whetzel, concluding that the act is applicable to the Board of Governors of the Washington State Bar Association.
7/In further support of this interpretation, we note that the original version of the bill (Senate Bill No. 485) from which the subject act emanated would have reached individual agency "directors" as well as multimember governing bodies. See, § 2 (2) of the bill as first introduced. However, this aspect of the measure was altered by a house committee amendment which replaced the text of the original Senate Bill almost in its entirety. See,State v. Coma, 69 Wn.2d 177, 417 P.2d 853 (1966), for the significance of such legislative history.
8/E.g., the council on higher education, as provided for under RCW 28B.80.030. By way of contrast, a board or commission of mixed composition which serves as an agency of the legislature in the performance of a legislative function, such as the boards of legislative ethics as provided for in chapter 44.60 RCW, would be within the scope of the exemption provided for in § 2 (1), supra.
9/Government Code, § 54950, et seq., and 11120, et seq., supra.
10/In our case, the sanction is a civil penalty assessment rather than a crime.
11/See, § 54960 of the California code, which provides:
"Any interested person may commence an action either by mandamus or injunction for the purpose of stopping or preventing violations or threatened violations of this chapter by members of the legislative body of a local agency."
12/Accord, AGO 63-79 (January 24, 1964), supra.
13/This question has specifically been asked by Representative Dick King for the public employees' collective bargaining committee of the legislative council.
14/On that date Representative Hoggins moved for adoption of an amendment to § 14 of the bill, the exemptions section, to add the following exemption:
"(4) Negotiations between public agencies and their employees or recognized employee organizations."
However, after extensive debate this proposal was defeated, according to the Journal of the House.
15/We note that the original version of the bill as introduced in the Senate would have provided that "no other business shall be considered at such meetings . . ."; however, this language was replaced with the sentence ". . . Final disposition shall not be taken on any other matter as such meetings . . ." by an early Senate amendment adopted on March 18, 1971.
16/See question (13).
17/Also see 54 Cal. Law Rev. 1650 (1966).
18/See, e.g., Cal. Gov't. Code § 54959, supra.
19/Notably, this section is broader than the original bill, § 14 of which would have limited standing to sue to "any interested person."
20/Interestingly, under a Texas statute requiring certain meetings to be open to the public (Article 6257-17, Vernon's Annotated Civil Statutes) but containing no reference to voidness of actions taken in violation of this requirement, the Texas Court of Appeals in Toyah Ind. Sch. Dist. v. Pecos-Barstow Ind. Sch. Dist., 466 S.W.2d 377 (1971), concluded that action taken by the school board in violation of the open meetings law was voidable by the court.
21/This conclusion is consistent with the provision in § 8, supra, which only precludes the "final disposition" of matters not covered by the notice of special meeting. Of course, the failure of the members of the governing body to have complied with the act at their earlier "meeting" would, nevertheless, render them personally liable for a civil penalty under § 12,supra.
22/See, RCW 34.04.025.