3.1 Introduction and Other Resources
The Open Public Meetings Act (“OPMA”), chapter 42.30 RCW was passed by the legislature in 1971 as a part of a nationwide effort to make government affairs more accessible and, in theory, more responsive. It was modeled on a California law known as the "Brown Act" and a similar Florida statute. See Cal. Governmental Code 54950-61 and 11120 et seq.; Fla. Stat. 286.011 et seq.
While the Washington legislature has clarified some of its provisions, the OPMA is substantially unchanged. There has been relatively little litigation regarding its interpretation, with the result that many gray areas exist. Soon after its passage, the Attorney General issued a comprehensive opinion which continues to be a useful resource. See1971 Att’y Gen. Op. No. 33. Other resources on the OPMA are Chapter 21, Public Records Act Deskbook: Washington’s Public Disclosure and Open Public Meetings Laws (Greg Overstreet, ed.) (Wash. State Bar Assoc. 2006) (available for purchase) and the Municipal Research Service Center’s OPMA Frequently Asked Questions
Together with the Public Records Act, chapter 42.56 RCW, the legislature has created important and powerful tools enabling the public to inform themselves about their government.
3.2 Interpretation of the OPMA
As with all laws, the courts will attempt to interpret the OPMA to accomplish the legislature's intent. The OPMA declares its purpose in a very strongly worded statement.
Statutory Provisions: 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 chapter 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. RCW 42.30.010.
The purposes of [the OPMA] are hereby declared remedial and shall be liberally construed. RCW 42.30.910.
Exceptions to the openness requirements of the OPMA (such as the grounds for executive sessions) are narrowly construed. Miller v. City of Tacoma, 138 Wn.2d 318, 324, 979 P.2d 429 (1999).
3.3 What Entities Are Subject To The Act
A. “Public Agency”
The Open Public Meetings Act requires, in essence, that meetings of the governing body of a "public agency" are open to the public. RCW 42.30.030 [[link]]
Statutory Provision: "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, commissions, and agencies; (d) Any policy group whose membership includes representatives of publicly owned utilities formed by or pursuant to the laws of this state when meeting together as or on behalf of participants who have contracted for the output of generating plants being planned or built by an operating agency. RCW 42.30.020.
The OPMA does not apply to an entity simply because it receives public funds (such as grants or contracts). Instead, the Attorney General has suggested a four-part test to be used in determining whether an entity is a “public agency” and subject to the OPMA: “(1) whether the organization performs a governmental function; (2) the level of government funding; (3) the extent of government involvement or regulation; and (4) whether the organization was created by the government.” 1991 Att’y Gen. Op. No. 5.
B. “Governing Body”
Statutory provision: "Governing body" means the multimember board, commission, committee, council, or other policy or rule-making body of a public agency, or any committee thereof when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment. RCW 42.30.020 (2).
Because the OPMA is directed to meetings of governing bodies, it does not apply to the activity of an agency which is governed by an individual. In Salmon for All v. Department of Fisheries, 118 Wn.2d 270, 821 P.2d 1211 (1992), the court held that the Department of Fisheries was not subject to the OPMA because it was governed by an individual, the Director. Many state agencies are governed by individuals and, therefore, not subject to the OPMA such as Labor and Industries, Licensing, Social and Health Services, State Patrol, Employment Security, etc.
In 1983, the legislature amended the definition of governing body to include “any committee thereof when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment.” Laws of 1983, ch. 155, §1. Since the definition uses the language, "a committee thereof," the implication is that some member of the governing body must be included in the committee.
Because a committee of a governing body is typically created by some sort of legislative act of the governing body, a committee may appear to be similar to a subagency, which is also created by legislative act. The difference under the OPMA between a “committee” and a “subagency” is that a committee does not possess policy or rule-making authority. This distinction between whether an entity is a subagency or a committee can be important as to the notice requirements for their meetings. All meetings of the governing body of a subagency are subject to the notice requirements of the OPMA; however, as discussed below, a dispute exists as to whether a committee is similarly required to give notice for all of its meetings when it is only at some of its meetings that it is acting so as to come within the definition of “governing body.”
Although it may be clear when a committee is conducting hearings or taking public testimony or comment, it is not clear from the language of the OPMA when a committee “acts on behalf” of the governing body. A 1986 attorney general opinion concludes that a committee acts on behalf of the governing body “when it exercises actual or de facto decision-making authority for the governing body.” 1986 Att’y Gen. Op. No. 16. That opinion, citing the legislative history of the OPMA and its amendments, distinguished when a committee is exercising such authority from when it is simply providing advice or information to the governing body. Using that rationale, the question of whether notice under the OPMA is required would depend on the kind of activity to be conducted. However, in Clark v. City of Lakewood, 259 F.3d 996 (9th Cir. 2001), the Ninth Circuit Court of Appeals found that a committee took public testimony and comment, held hearings, and acted on behalf of the governing body and therefore violated the Act when it failed to provide notice of all of its meetings. The court, however, did not analyze the committee’s activity at each of the meetings, but simply concluded that all the meetings required the statutory notice.
While an argument can be made that a committee may be required to give notice only for those meetings when it will be taking testimony or public comment or exercising decision-making authority for the governing body, it would be prudent for such committees to conduct all their business in open meetings.
Case example: The seven-member city council is considering the purchase of public art. The council agrees that public input would assist the selection process. Some councilmembers believe that the creation of an arts commission that would adopt policies for the city’s acquisition of public art would “get politics out of the world of art.” Other councilmembers express concern that an arts commission will control too much of the process without significant council input. Three resolutions are drafted for council consideration:
The first establishes a city arts commission and details the method of selecting the members, including three city councilmembers and two citizen members, who would serve specific terms. The commission is directed to establish policies for the selection and placement of public art in the city. Its recommended policies will be subject to city council approval. It is directed to obtain public input before the adoption of the recommended policies. As funding becomes available, it will make recommendations to the city council regarding the purchase of works of public art and their location in the city.
The second resolution establishes a public arts committee of the city council consisting of three members of the council. Five interested citizens will be asked to participate in its determination of worthy projects. The citizens would serve at the pleasure of the council. The public arts committee is directed to develop a list of citizens who have expressed interest in public art and to hold hearings seeking public comment regarding any recommendations that the committee might make to the full city council.
The third resolution recognizes the existence of a citizen’s committee known as “Public Art Now!” that was formed by a councilmember. The committee would be authorized to use city’s meeting rooms. The council would welcome the committee’s advice regarding the selection and placement of public art and its recommendations would be considered at any public hearing when the council decided to purchase works of art.
What would be the consequences under the OPMA of the adoption of each resolution?
Resolution: The city arts commission is probably a “subagency” under the OPMA. It has been created by legislative act and its governing body is directed to develop policy for the city. As such, all of its meetings would be subject to the Act’s requirements.
The public arts committee is probably a “committee” of the governing body, the city council. It is not a separate entity. Since it will be obtaining public input, at least some of its meetings would be subject to the Act. However, it is advisable that it hold all its meetings in open session.
“Public Art Now” is not subject to the OPMA. The city council did not establish it or grant it any authority.
A. What Is A "Meeting"
Statutory provisions: "Meeting" means meetings at which action is taken. RCW 42.30.020(4).
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 chapter. Any action taken at meetings failing to comply with the provisions of this subsection shall be null and void. RCW 42.30.060(1).
It shall not be a violation of the requirements of this chapter for a majority of the members of a governing body to travel together or gather for purposes other than a regular meeting or a special meeting as these terms are used in this chapter: PROVIDED, That they take no action as defined in this chapter. RCW 42.30.070.
A meeting occurs whenever the governing body of a public agency takes "action" (the meaning of “action” is discussed below). If the required notice has not been given, the action taken is null and void, that is, as if it had never occurred. The OPMA expressly permits the members of the governing body to travel together or engage in other activity, such as attending social functions, so long as they do not take action.
An email exchange among members of a governing body in which an “action” takes place can be a “meeting” under the OPMA. Wood v. Battle Ground School Dist., 107 Wn. App. 550, 564, 27 P.3d 1208 (2001). (Whether a quorum is required is addressed below.) Since an email exchange among members of a governing body is not open to the public, such an exchange in which an “action” took place would violate the OPMA.
It is generally agreed that an agency may conduct its meeting where one of the members of the governing body attends by telephone and a speaker phone is available at the official location of the meeting so as to afford the public the opportunity to hear the member's input. This should occur only when a member is unable to travel to the meeting site and would not include "telephone trees" where the members repeatedly call each other to form a majority decision.
A quorum of members of a governing body may attend a meeting of another organization’s provided that the body takes no “action” (defined below). 2006 Att’y Gen. Op. No. 6. For example, a majority of a city council could attend a meeting of a regional chamber of commerce or a county commission meeting provided that the council members did not discuss city business or do anything else that constitutes an “action.”
B. What Is "Action"
Statutory provision: "Action" means the transaction of the official business of a public agency by a governing body including but not limited to receipt of public testimony, deliberations, discussions, considerations, reviews, evaluations, and final actions. "Final action" means a collective 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. RCW 42.30.020(3).
It is important to realize that the OPMA provides that a meeting occurs whenever there is action, including the discussion, deliberation or evaluation that may lead to a final decision. That is, it is the “action” (discussion, etc.) that determines whether a “meeting” has taken place, not whether a “meeting” in the everyday sense of the term (such a gathering of people at City Hall) has taken place. Eugster v. Spokane, 110 Wn. App. 212, 225, 39 P.3d 380, review denied, 147 Wn.2d 1021 (2002).
The notice requirements of the OPMA are not limited to meetings at which a final official vote is taken, which is intended to authorize or memorialize the policy of the governing body. Protect the Peninsula's Future v. Clallam County, 66 Wn. App. 671, 833 P.2d 406 (1992), review denied, 121 Wn.2d 1011 (1993). That is "final action" under the OPMA and is important for deciding what decisions can be made during an executive session. "Final action" refers to the final vote by the governing body on the matter. One court held that a decision by fire district commissioners to terminate a fire chief was not final action because it was not a decision upon a motion, proposal, resolution, order or ordinance. Slaughter v. Snohomish County Fire Protection Dist. No. 20, 50 Wn. App. 733, 750 P.2d 656, review denied, 110 Wn.2d 1031 (1988). However, in 1989 the legislature amended the statute to require such action to be taken in an open public meeting. See RCW 42.30.110 (1)(g).
A meeting occurs if a quorum (that is, a majority) of the members of the governing body were to discuss or consider, for instance, the budget, personnel, or land use issues no matter where that discussion or consideration might occur. What about if less than a quorum is present? Several cases hold that the OPMA is only triggered by a quorum of the governing body, so the “action” of less than a quorum is not subject to the OPMA. See, e.g., Eugster v. City of Spokane, 128 Wn. App. 1, 8, 114 P.3d 1200 (2005). Others argue that the legislative history of the OPMA indicates that the statute formerly required a quorum for an “action” but was amended to apply to an action with less than a quorum. Laws of 1985, ch. 366, § 1(3).
The OPMA does not allow for "study sessions", "retreats", or similar efforts to discuss agency issues without the required notice. Notice must be given just as if a formally scheduled meeting was to be held. In one case, the court held that it was not "action" for members of the governing body to individually review material in advance of a meeting at which a public contract was awarded. Equitable Shipyards, Inc. v. State of Wash., 93 Wn.2d 465, 611 P.2d 396 (1980).
Case example: The five member School Board attend the annual convention of the State School Association. Over dinner, three members discuss some of the ideas presented during the convention, but refrain from any conversation about how they might apply them to the school district. All five travel together to and from the convention and the only discussion is over whether they are lost.
Resolution: No violation occurred but the board members must be careful. The example is offered to highlight the level of awareness members of a governing body must have. It is not unusual for such situations to arise. For instance, the dinner discussion was between a majority of the members so a discussion about school district business would have been "action" and, without the required notice, would be in violation of the OPMA.
C. Secret Votes Prohibited
Statutory provision: No governing body of a public agency at any meeting required to be open to the public shall vote by secret ballot. Any vote taken in violation of this subsection shall be null and void, and shall be considered an "action" under this chapter. RCW 42.30.060(2).
"Secret" votes are prohibited and any votes taken in violation of the OPMA are null and void. Presumably, the members of the governing body are required to publicly announce their vote at the time it is taken, and that vote would be recorded in the minutes of the meeting for future reference.
D. Kinds of Meetings Not Covered by the OPMA
The OPMA excludes from its coverage:
(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
(3) Matters governed by chapter 34.05 RCW, the Administrative Procedure Act; or
(4)(a) Collective bargaining sessions with employee organizations, including contract negotiations, grievance meetings, and discussions relating to the interpretation or application of a labor agreement; or (b) that portion of a meeting during which the governing body is planning or adopting the strategy or position to be taken by the governing body during the course of any collective bargaining, professional negotiations, or grievance or mediation proceedings, or reviewing the proposals made in the negotiations or proceedings while in progress. RCW 42.30.140.
The OPMA provides that certain activities that would otherwise be meetings are exempt from its notice requirements. When an agency engages in those activities, it is not required to comply with the OPMA, although other public notice requirements may apply. Responsible Urban Growth Group v. City of Kent, 123 Wn.2d 376, 868 P.2d 861 (1994). Generally, this provision applies to activities that already require public notice, such as quasi-judicial matters or hearings governed by the Administrative Procedure Act (chapter 34.05 RCW). Quasi-judicial matters are those where the governing body is required to determine the rights of individuals based on legal principles. The court has held that a decision by a school board to not renew teacher's contracts is quasi-judicial in nature and can properly be discussed outside of public view. Pierce v. Lake Stevens School Dist. No. 4, 84 Wn.2d 772, 529 P.2d 810 (1974).
The courts have employed a four-part test to determine whether administrative action is quasi-judicial: (1) Whether a court could have been charged with making the agency's decision; (2) whether the action is one which historically has been performed by courts; (3) whether the action involves the application of existing law to past or present facts for the purpose of declaring or enforcing liability; and (4) whether the action resembles the ordinary business of courts as opposed to that of legislators or administrators. Protect the Peninsula's Future v. Clallam County, 66 Wn. App. 671, 833 P.2d 406 (1992), review denied, 121 Wn.2d 1011 (1993); Dorsten v. Port of Skagit County, 32 Wn. App. 785, 650 P.2d 220, review denied, 98 Wn.2d 1008 (1982).
Case example: During a break in the regular meeting, the Council gets together in the chambers to decide what they should do with regard to the union's latest offer. They authorize the negotiator to accept the offer on wages if the union will accept the seniority amendments. When they return to the meeting, nothing is said about the discussion or decision.
Resolution: The Act specifically exempts the discussion and decision about the collective bargaining strategy or position from its requirements. Since it was exempt, the discussion could have occurred at any time or place. It was unnecessary to announce the fact that the discussion took place.
The OPMA is not a basis for withholding public records. See Am. Civil Liberties Union v. City of Seattle, 121 Wn. App. 544, 555, 89 P.3d 295 (2004). Therefore, even though collective bargaining matters can be discussed in a closed session, this is not a basis for withholding public records relating to that topic.
E. Who May Attend Public Meetings and Recording Meetings, and Disorderly Conduct at Meetings
Statutory provision: 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. RCW 42.30.040.
The OPMA provides that any member of the public may attend the meetings of the governing body of a public agency. The agency may not require people to sign in, complete questionnaires or establish other conditions to attendance. For instance, an agency could not limit attendance to those persons subject to its jurisdiction. The OPMA does not address whether an agency is required to hold its meeting at a location that would permit every person to attend. However, it seems clear that the courts would discourage any attempt to deliberately schedule a meeting at a location that was too small to permit full attendance or that was locked. RCW 42.30.050.
A person may record a meeting (audio or video) provided that it does not disrupt the meeting. 1998 Att’y Gen. Op. No.15. A stationary audio or video recording device would not disrupt the meeting.
Statutory provision: 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.RCW 42.30.050.
If those in attendance are disruptive and make further conduct of the meeting unfeasible, those creating the disruption may be removed. In re Recall of Kast, 144 W.2d 807, 817, 31 P.3d. 677 (2001). Or the meeting may be adjourned to another place; however, members of the media are entitled to attend the adjourned meeting and the governing body is limited to act only on those matters on the agenda.
Case example: The Board schedules a special meeting to discuss a controversial policy question. It becomes obvious that the regular meeting room is too small for all of those trying to attend the meeting. The Board announces that the meeting will be adjourned to an auditorium in the same building. The chair announces that those who wish to speak should sign in on the sheet on the table. She states that given the available time, speakers will be limited to 10 minutes each. At one point, the meeting is adjourned to remove an apparently intoxicated person who had been interrupting the comments of speakers.
Resolution: While the OPMA allows the public to attend all meetings, it does not allow for the possibility of insufficient space. Presumably, if a nearby location is available, the governing body should move there to allow attendance. The chair can require those who wish to speak (but not all attendees) to sign in. The sign-in requirement for speaking does not restrict attendance, only participation. Since the OPMA does not require the governing body to allow public participation, the time for each speaker can also be limited. The governing body can maintain order by removing those who are disruptive.
G. Right to Speak at Meetings
The OPMA does not require a governing body to allow everyone to speak at a public meeting. A governing body has significant authority to limit the time of speakers to a uniform amount (such as three minutes) or to not allow anyone to speak. Other laws might require the governing body to allow the public to speak at a public meeting, but the OPMA does not.
F. Minutes of Meetings
Under a statute outside the OPMA, RCW 42.32.010, agencies must maintain minutes of their meetings and make them available upon request. The law does not specify the format or content of the required minutes. In order to satisfy the need to memorialize certain actions such as the adoption of a budget, the minutes should, at a minimum, recite the significant actions of the agency. Many agencies maintain audio recordings of the open portions of their public meetings (that is, the portions not conducted in executive session).
3.5 Required Notice of Public Meetings
The notice requirements of the OPMA are divided into notice of regular meetings (such as the third Tuesday of every month) and special meetings (meeting to address special occurrences).
A. Regular Meetings
Statutory provisions: State agencies which hold regular meetings shall file with the code reviser a schedule of the time and place of such meetings on or before January of each year for publication in the Washington state register. Notice of any change from such meeting schedule shall be published in the state register for distribution at least twenty days prior to the rescheduled meeting date. For the purposes of this section "regular" meetings shall mean recurring meetings held in accordance with a periodic schedule declared by statute or rule. RCW 42.30.075.
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. RCW 42.30.070.
The OPMA requires agencies to identify the time and place they will hold their regular meetings, that is, "recurring meetings held in accordance with a periodic schedule declared by statute or rule." State agencies subject to the OPMA must publish their schedule in the Washington State Register, while local agencies (such as cities and counties) must adopt the schedule "by ordinance, resolution, bylaws, or by whatever other rule is required for the conduct of business by that body." Although an agency is not required to meet inside the boundaries of its jurisdiction, there is general agreement that agencies should not schedule meetings at locations that effectively exclude the public. Other statutes may require certain entities to hold their meetings at particular locations, such as RCW 36.32.080, which requires a board of county commissioners to hold regular meetings at the county seat.
The OPMA does not require an agency to notify the public of anything other than the time and place that it will hold its regular meetings. That is, the OPMA does not require an agency to provide an agenda of a regular meeting. Hartman v. Washington State Game Comm'n, 85 Wn.2d 176, 532 P.2d 614 (1975); Dorsten v. Port of Skagit County, 32 Wn. App. 785, 650 P.2d 220 (1982), review denied, 98 Wn.2d 1008 (1982). However, other laws may require additional notice or an agenda in specific circumstances. See, e.g., RCW 35.23.221, RCW 35A.12.160. No agenda or other description of the business to be transacted is required by the OPMA for regular meetings.
B. Special Meetings
Statutory provision: 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 delivering written notice personally, by mail, by fax, or by electronic mail 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, by mail, by fax, or by electronic 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, by fax, or electronic mail. 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. RCW 42.30.080.
Whenever an agency has a meeting at a time other than a scheduled regular meeting, it is conducting a "special meeting." For each special meeting, the OPMA requires at least 24 hours’ written notice to the members of the governing body and media representatives who have filed a written request for notices of special meetings. Notice by fax or e-mail is allowed. The OPMA does not provide any guidance as to whether the media's written request for notice must be renewed; it is advisable, however, to periodically renew such requests to insure that they contain the proper contact information for the notice and have not been misplaced or inadvertently overlooked due to changes in agency personnel.
The notice of a special meeting must specify the time and place of the meeting and "the business to be transacted,” which would normally be an agenda. At a special meeting, final disposition by the agency is limited to the matters identified as the business to be conducted in the notice. There is disagreement as to whether the governing body could discuss, but not finally dispose of, matters not included in the notice of the special meeting.
A member of the governing body may waive the required notice by filing a written waiver or simply appearing at the special meeting. Estey v. Dempsey, 104 Wn.2d 597, 707 P.2d 1338 (1985). The failure to provide notice to a member of the governing body can only be asserted by the person who should have received the notice, not by any person affected by action at the meeting. Kirk v. Pierce County Fire Protection Dist. No. 21, 95 Wn.2d 769, 630 P.2d 930 (1981.
Case example: The superintendent of the school district announced her retirement. The five-member school board passed a motion at its regular meeting to direct the staff to announce the vacancy, seek applicants, screen them and select the three most qualified candidates for presentation to the board for their final selection. The three candidates were identified together with a description of their qualifications. The letter was released to the public and the local newspaper. Controversy arose over which of the candidates was most qualified.
At the next regular meeting, the board decided to schedule a special meeting the following week to consider the three candidates, receive public comment and select the new superintendent. No particular agenda was created. The newspaper published the various points of view and the stories described the time and place of the special meeting. The entire board attended the special meeting. No other notice was given.
Resolution: The notice of the meeting was sufficient, unless the media had filed a written request for notice of special meetings. The only notice required of a special meeting is to the members of the governing body and only the members of the governing body may raise the lack of that notice. Here, the members of the governing body all attended the meeting, waiving any objection to the lack of notice. The media is only entitled to notice if the written request is filed.
C. No Other Notices Required
It is notable that the above regular and special meetings notice requirements are the only meeting notice requirements in the OPMA. With the exception of the media’s request for notice of a special meeting, there is no requirement to provide notice to the local media of regular or special meetings, unless the required written request for notice has been filed. Nor are agencies required to publish information through the media or to post notice at public locations. However, local jurisdictions may adopt additional notice requirements according to their own rules of procedure, or other laws may require notice.
D. No Notice Is Required For Emergency Meetings
The OPMA provides that no notice is required for an emergency meeting such as when the jurisdiction has suffered a natural disaster or similar emergency:
Statutory provision: If, by reason of fire, flood, earthquake, or other emergency, there is a need for expedited action by a governing body to meet the emergency, the presiding officer of the governing body may provide for a meeting site other than the regular meeting site and the notice requirements of this chapter shall be suspended during such emergency. RCW 42.30.070.
The courts have found that the agency must be confronted with a true emergency that requires immediate action, such as a natural disaster. It has been held that a strike by teachers did not justify an "emergency" meeting by the school board. Mead School Dist. No. 354 v. Mead Education Ass'n, 85 Wn.2d. 140, 530 P.2d 302 (1975). It is advisable for the agency to provide special-meeting notice of the emergency meeting if possible.
3.6 Remedies For Violations
There are both public-relations and legal consequences from an OPMA violation. The loss of credibility suffered by an agency as a result of a judicial finding of an OPMA violation—or even the mere filing of an OPMA suit—may be the most severe consequence. Once damaged, that credibility can be very difficult to regain and can negatively affect every other action of the agency in the public’s eyes. Most agencies are governed by elected officials, and actual or perceived attempts to hold secret meetings are not popular with voters.
The legal consequences can be severe. First, any action taken in violation of the OPMA is void.
Statutory Provision: (1) No governing body of a public agency shall adopt any ordinance, resolution, rule, regulation, order, or directive, except in a meeting open to the public 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 chapter. Any action taken at meetings failing to comply with the provisions of this subsection shall be null and void. (2) No governing body of a public agency at any meeting required to be open to the public shall vote by secret ballot. Any vote taken in violation of this subsection shall be null and void, and shall be considered an "action" under this chapter. RCW 42.30.060.
If an agency violates the OPMA and its action is null and void, it must retrace its steps by taking the action in accordance with the OPMA, which usually means re-discussing and re-voting on the matter in an open meeting. See Henry v. Town of Oakville, 30 Wn. App. 240, 246, 633 P.2d 892 (1981), review denied, 96 Wn.2d 1027 (1982); Feature Realty v. City of Spokane, 331 F.3d 1082, 1091 (9th Cir. 2003) (agency re-tracing of steps must be done in public). If a person seeks to void an election based upon a violation of the OPMA, the lawsuit must be initiated as soon as possible or the court may bar that relief based on the delay in filing. Lopp v. Peninsula School Dist. No. 401, 90 Wn.2d 754, 585 P.2d 801 (1978).
Second, the OPMA provides for financial penalties.
Statutory provision: (1) Each member of the governing body who attends a meeting of such governing body where action is taken in violation of any provision of this chapter 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 chapter 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. (2) Any person who prevails against a public agency in any action in the courts for a violation of this chapter shall be awarded all costs, including reasonable attorney fees, incurred in connection with such legal action. Pursuant to RCW 4.84.185, any public agency who prevails in any action in the courts for a violation of this chapter may be awarded reasonable expenses and attorney fees upon final judgment and written findings by the trial judge that the action was frivolous and advanced without reasonable cause. RCW 42.30.120.
A member of the governing body is personally liable for the $100 penalty only if he or she is aware that the meeting is in violation of the OPMA. Eugster v. Spokane, 110 Wn. App. 212, 226, 39 P.3d 380 (2002). The court must award attorney fees to a successful party. If the court finds that the lawsuit against the agency is frivolous, which is a very difficult burden for the agency to prove, the agency may recover its attorney fees and expenses. The only statutory remedy is an action filed in superior court. No agency has the authority to sanction violations or to issue regulations interpreting the "gray areas" of the OPMA.
Attorney General’s Open Government Internet Deskbook (Public Records and Open Meetings)
Chapter 1: Public Records Act – General and Procedural Provisions
Chapter 2: Public Records Act – Exemptions from Disclosure (Laws Allowing Withholding of Records)
Chapter 3: Open Public Meetings Act – General and Procedural Provisions
Chapter 4: Open Public Meetings Act – Executive Sessions (Closed Sessions)