"Executive session" is not expressly defined in the OPMA, but the term is commonly understood to mean that part of a regular or special meeting of the governing body that is closed to the public. A governing body may hold an executive session only for specified purposes, which are identified in RCW 42.30.110(1)(a)-(m), and only during a regular or special meeting. Nothing, however, prevents a governing body from holding a meeting, which complies with the OPMA's procedural requirements, for the sole purpose of having an executive session.
Attendance at an executive session need not be limited to the members of the governing body. Persons other than the members of the governing body may attend the executive session at the invitation of that body. Those invited should have some relationship to the matter being addressed in the closed session, or they should be in attendance to otherwise provide assistance to the governing body. For example, staff of the governing body or of the governmental entity may be needed to present information or to take notes or minutes. However, minutes are not required to be taken at an executive session. See RCW 42.32.030.
Because an executive session is an exception to the OPMA’s overall provisions requiring open meetings, a court will narrowly construe the grounds for an executive session in favor of requiring an open meeting. Miller v. City of Tacoma, 138 Wn.2d 318, 324, 979 P.2d 429 (1999).
The announcement by the presiding officer of the executive session must state two things: (1) the purpose of the executive session, and (2) the time when the executive session will end. The announcement is to be given to those in attendance at the meeting.
The announced purpose of the executive session must be one of the statutorily-identified purposes for which an executive session may be held. The announcement therefore must contain enough detail to identify the purpose as falling within one of those identified in RCW 42.30.110(1). It would not be sufficient, for example, for a mayor to declare simply that the council will now meet in executive session to discuss "personnel matters." See Municipal Research Service Center - OPMA Frequently Asked Questions, No. 15. Discussion of personnel matters, in general, is not an authorized purpose for holding an executive session; only certain specific issues relating to personnel may be addressed in executive session. See RCW 42.30.110(1)(f), (g).
Another issue that may arise concerning these procedural requirements for holding an executive session involves the estimated length of the session. If the governing body concludes the executive session before the time that was stated it would conclude, it should not reconvene in open session until the time stated. Otherwise, the public may, in effect, be excluded from that part of the open meeting that occurs between the close of the executive session and the time when the presiding officer announced the executive session would conclude.
If the executive session is not over at the stated time, it may be extended only if the presiding officer announces to the public at the meeting place that it will be extended to a stated time.
(a) To consider matters affecting national security;
After September 11, 2001, state and local agencies have an increased role in national security. Therefore discussions by agency governing bodies of security matters relating to possible terrorist activity should come within the scope of this executive session provision.
The Washington National Guard is headed by an adjutant general appointed by the governor; there is no governing body of the National Guard to which the OPMA applies. See chapter 38.12 RCW.
(b) To consider the selection of a site or the acquisition of real estate by lease or purchase when public knowledge regarding such consideration would cause a likelihood of increased price;
This provision has two elements: (1) the governing body must be considering either selecting real property for purchase or lease or it must be considering purchasing or leasing specific property; and (2) public knowledge of the governing body's consideration would likely cause an increase in the price of the real property.
For the purposes of RCW 42.30.110(1), the consideration of the purchase of real property can involve condemnation of the property, including the amount of compensation to be offered for the property. Port of Seattle v. Rio, 16 Wn. App. 718, 724, 559 P.2d 18 (1977).
However, it remains unclear exactly what the scope is of “considering” the acquisition of real property. Since this subsection recognizes that the process of purchasing or leasing real property or selecting real property to purchase or lease may, in some circumstances, justify an executive session, it implies that the governing body may need to reach some consensus in closed session as to the price to be offered or the particular property to be selected. See Port of Seattle, 16 Wn. App. at 723-25. However, the state Supreme Court in Miller v. City of Tacoma, 138 Wn.2d 318, 327, 979 P.2d 429 (1999), emphasized that “only the action explicitly specified by the exemption [“consider”] may take place in executive session.” See also Feature Realty, Inc. v. City of Spokane, 331 F.3d 1082, 1089 (9th Cir. 2003). Taken literally, this limitation would preclude a governing body in executive session from actually selecting a piece of property to acquire or setting a price at which the body would be willing to purchase property, because such action would be beyond the power to merely “consider.” Yet, the purpose of an executive session under this subjection would be defeated if the governing body would be required to vote in open session to select the property or to decide how much it would be willing to pay for the property, where public knowledge of these matters would likely increase its price. This issue calls for judicial or legislative clarification.
(c) To consider the minimum price at which real estate will be offered for sale or lease when public knowledge regarding such consideration would cause a likelihood of decreased price. However, final action selling or leasing public property shall be taken in a meeting open to the public;
This subsection, the reverse of the previous one, also has two elements: (1) the governing body must be considering the minimum price at which real property belonging to the agency will be offered for sale or lease; and (2) public knowledge of the governing body's consideration will likely cause a decrease in the price of the property.
The second sentence of the subsection, concerning final action selling or leasing the property, may seem unnecessary, since all final actions must be taken in a meeting open to the public. However, its possible purpose may be to indicate that, although the decision to sell or lease the property must be in open session, the governing body may decide in executive session the minimum price at which it will do so. A contrary interpretation would defeat the purpose of this subsection. But see Miller v. City of Tacoma, 138 Wn.2d 318, 327, 979 P.2d 429 (1999) and discussion in Section 4.3(b) above.
Governing bodies should exercise caution when meeting in closed session under this and the preceding provision so that they are not doing so when there would be no likelihood of increased price if the matter were considered in open session.
(d) To review negotiations on the performance of publicly bid contracts when public knowledge regarding such consideration would cause a likelihood of increased costs;
This subsection indicates that when a public agency and a contractor performing a publicly bid contract are negotiating concerning how the contract is being performed, the governing body may "review" those negotiations in executive session if public knowledge of the review would likely cause an increase in contract costs. Presumably, difficulties or disputes concerning contract performance have arisen in some contexts that require confidentiality to avoid increased costs where the nature of the difficulties or disputes would become public knowledge.
(e) To consider, in the case of an export trading company, financial and commercial information supplied by private persons to the export trading company;
This provision applies to export trading companies that can be created by port districts under chapter 53.31 RCW. Under RCW 53.31.050, financial and commercial information supplied by private persons to an export trading company must be kept confidential.
(f) To receive and evaluate complaints or charges brought against a public officer or employee. However, upon the request of such officer or employee, a public hearing or a meeting open to the public shall be conducted upon such complaint or charge;
This subsection should be distinguished from subsection (g), discussed below, concerning reviewing the performance of a public employee in executive session. For purposes of meeting in executive session under provision (f), a charge or complaint must have been brought against a public officer or employee. The complaint or charge could come from within the agency or from the public. Bringing the complaint or charge triggers the opportunity of the officer or employee to request that a public hearing or open meeting be held regarding the complaint or charge.
(g) To evaluate the qualifications of an applicant for public employment or to review the performance of a public employee. However, subject to RCW 42.30.140(4), discussion by a governing body of salaries, wages, and other conditions of employment to be generally applied within the agency shall occur in a meeting open to the public, and when a governing body elects to take final action hiring, setting the salary of an individual employee or class of employees, or discharging or disciplining an employee, that action shall be taken in a meeting open to the public;
There are two different purposes under this provision for which a governing body may meet in executive session. For both purposes, the references to "public employment" and to "public employee" include within their scope public offices and public officials, so that a governing body may evaluate in executive sessions persons who apply for appointive office positions, such as state university president or city manager, as well as for employee positions.
The first purpose involves evaluating the qualifications of applicants for public employment. This could include personal interviews with an applicant, discussions concerning an applicant's qualifications for a position, and discussions concerning salaries, wages, and other conditions of employment personal to the applicant. The authority to "evaluate" applicants in closed session allows a governing body to discuss the qualifications of applicants, not to choose which one to hire. Although the subsection expressly mandates that "final action hiring" an applicant for employment be taken in open session, this does not mean that the governing body may take preliminary votes that eliminate candidates from consideration. Miller v. City of Tacoma, 138 Wn.2d 318, 329-31, 979 P.2d 429 (1999).
The second part of this provision concerns reviewing the performance of a public employee. This provision would be used typically either where the governing body is considering a promotion or a salary or wage increase for an individual employee or where it may be considering disciplinary action based on an employee's performance. It should be distinguished from subsection (f), which concerns specific complaints or charges brought against an employee and which, at the request of the employee, must be discussed in open session.
The result of a governing body's closed session review of the performance of an employee may be that the body will take some action either beneficial or adverse to the officer or employee. That action, whether raising a salary of or disciplining an officer or employee, must be made in open session.
When a discussion involves salaries, wages, or conditions of employment to be "generally applied" in the agency, it must take place in open session. However, if that discussion involves collective bargaining negotiations or strategies, it is not subject to the OPMA and may be held in closed session without being subject to the procedural requirements for an executive session in RCW 42.30.110(2). See RCW 42.30.140(4).
Case Example: A city council meets in executive session to consider two applicants for the city manager position. During the discussion of the applicants' qualifications, particularly their past city manager experience, it becomes clear that a majority of the council members are not happy with the qualifications of either candidate. The discussion then turns to the search process and whether it was broad enough or sufficiently advertised to attract all interested and qualified candidates. A number of council members express dissatisfaction with the process and express a desire to begin the search for a city manager anew, with a more comprehensive search process. The council then closes the executive session and reconvenes the open session. A motion is made and a vote is taken to reject both of the candidates for the city manager position the council had evaluated in closed session. Then a second motion is made and approved to authorize city staff to develop a new search procedure that is broader and more extensively advertised than the original search. Did the council meet improperly in executive session?
Resolution: Yes and no. The council satisfied subsection (g) by discussing the merits of the two applicants. It did not vote on either of the applicants. The fact that it became clear from the individual council members' expressions of opinion that neither applicant was sufficiently qualified from the council's point of view does not allow any final action in closed session. The vote taken to reject both applicants took place in open session.
However, the discussion concerning the search process should have taken place in open session, because it did not involve evaluating the qualifications of any applicant for the city manager position.
(h) To evaluate the qualifications of a candidate for appointment to elective office. However, any interview of such candidate and final action appointing a candidate to elective office shall be in a meeting open to the public;
This provision applies when an elected governing body is filling a vacant position on that body. Examples of such bodies include a board of county commissioners, a city council, a school board, and the boards of special purpose districts, such as fire protection and water districts. Under this provision, an elected governing body may evaluate the qualifications for an applicant for a vacant position on that body in executive session. However, unlike when it is filling other positions, the governing body may interview an applicant for a vacancy in an elective office only in open session. As with all other appointments, the vote to fill the position must also be in open session.
(i) To discuss with legal counsel representing the agency matters relating to agency enforcement actions, or to discuss with legal counsel representing the agency litigation or potential litigation to which the agency, the governing body, or a member acting in an official capacity is, or is likely to become, a party, when public knowledge regarding the discussion is likely to result in an adverse legal or financial consequence to the agency. This subsection (1)(i) does not permit a governing body to hold an executive session solely because an attorney representing the agency is present. For purposes of this subsection (1)(i), "potential litigation" means matters protected by Attorney Rules of Professional Conduct 1.6 or RCW 5.60.060(2)(a) concerning: (A) Litigation that has been specifically threatened to which the agency, the governing body, or a member acting in an official capacity is, or is likely to become, a party; (B) Litigation that the agency reasonably believes may be commenced by or against the agency, the governing body, or a member acting in an official capacity; or (C) Litigation or legal risks of a proposed action or current practice that the agency has identified when public discussion of the litigation or legal risks is likely to result in an adverse legal or financial consequence to the agency;
This provision for holding an executive session is based on the legislative recognition that the attorney-client privilege between a public agency governing body and its legal counsel can co-exist with the OPMA. See Port of Seattle v. Rio, 16 Wn. App. 718, 724-25, 559 P.2d 18 (1977); 1971 Att’y Gen. Op. No. 33, at 20-23. However, that privilege is not necessarily as broad as it may be between a private party and legal counsel.
An agency must meet three basic requirements before it can invoke this provision to meet in closed session. First, "legal counsel representing the agency" must attend the executive session to discuss the enforcement action, or the litigation or potential litigation. This is the only executive session provision that requires the attendance of someone other than the members of the governing body. The legal counsel may be the "regular" legal counsel for the agency, such as a city attorney or the county prosecutor, or it may be legal counsel hired specifically to represent the agency in particular litigation.
Second, the discussion with the legal counsel either must concern an agency enforcement action or it must concern litigation or potential litigation to which the agency, the governing body, or one of its members acting in an official capacity is or is likely to become a party. Discussions concerning enforcement actions or existing litigation could, for example, involve matters such as strategy or settlement. In the 2001 session, the legislature added language defining the term “potential litigation.” The original bill (House Bill 1384 (2001)) would have restricted its application to situations where litigation had been specifically threatened or the agency reasonably believed litigation would be commenced. Because the legislature ultimately included the authority to discuss the legal risks of a proposed or existing agency practice or action, the governing body may also meet in executive session when discussing those risks in open session would likely have an adverse effect on the agency’s financial or legal position. The reference in the definition of “potential litigation” to RPC 1.6 is to the Rule of Professional Conduct adopted by the state Supreme Court that requires all attorneys to maintain the confidentiality of their communications with clients, and the reference to RCW 5.60.060(2)(a) is to the statute prohibiting an attorney from testifying about those communications. The recent amendment permits discussions by an agency of actions that involve a genuine legal risk to the agency. Discussion of such risks in closed session would permit the governing body to freely consider the legal implications of a proposed decision without the attendant concern that it might be jeopardizing some future litigation position.
The third requirement for meeting in closed session under this subsection is that public knowledge of the discussion would likely result in adverse legal or financial consequence to the agency. It is probable that public knowledge of most discussions of existing litigation to which the agency, the governing body, or one of its members in an official capacity is a party would result in adverse legal or financial consequence to the agency. Knowledge by one party in a lawsuit of the communications between the opposing party and its attorney concerning that lawsuit will almost certainly give the former an advantage over the latter. The same probably can be said of most discussions that qualify as involving potential litigation. The state supreme court, in Recall of Lakewood City Council, 144 Wn.2d 583, 586-87, 30 P.3d 474 (2001), held that a governing body is not required to determine beforehand whether disclosure of the discussion with legal counsel would likely have adverse consequences; it is sufficient if the agency, from an objective standard, should know that the discussion is not benign and will likely result in adverse consequences.
Since the purpose of this executive session provision is only to allow the governing body to discuss litigation or enforcement matters with legal counsel, the governing body is not authorized to take final action regarding such matters in an executive session. Recent case law suggests that a governing body may do no more than discuss litigation or enforcement matters and may therefore be precluded from decisions in the context of such a discussion in order to advance the litigation or enforcement action. In Feature Realty, Inc. v. City of Spokane, 331 F.3d 1082,1089 (9th Cir. 2003), the court invalidated a “collective positive decision” of a governing body in executive session to approve a settlement agreement. The Feature Realty court relied on the holding in Miller v. City of Tacoma, 138 Wn.2d 318, 327, 979 P.2d 429 (1999), that only a governing body can only take an action in executive session “explicitly specified” in an exemption to the OPMA. Feature Realty, 331 F.3d at 1089-90.
However, since one purpose of shielding these discussions from public view is to protect the secrecy of strategic moves concerning litigation, the interpretation of the scope of the governing body's authority to take some actions in executive session under this provision should afford that protection. For example, may a city council informally vote or reach a consensus in executive session to authorize the city attorney to settle a case for no higher than a certain amount, which is different in scope from “final action” approving the settlement agreement that was invalidated in Feature Realty? An interpretation supporting the council's authority to take such action appears warranted but may not be supported by the strict language in Feature Realty and Miller. Nevertheless, it is clear that the council's vote to give final approval to a settlement agreement must occur in an open meeting.
This provision is, in practice, often used as a justification for executive sessions, particularly because "potential litigation" is susceptible to a broad reading. Indeed, many things a public agency does will subject it to the possibility of a lawsuit. However, a court will construe “potential litigation” or any other grounds for an executive session narrowly and in favor of requiring open meetings. Miller, 138 Wn.2d at 324. To avoid a reading of this subsection that may be broader than that intended by the legislature—and to avoid a suit alleging a violation of the OPMA—it is important for an agency to look at the facts of each situation in the context of all the requirements of this subsection.
Case Example: A board of county commissioners is considering adopting a stringent adult entertainment ordinance, and a company that had announced its intention to locate a nude dancing establishment in the county states that it will sue the county if it passes this ordinance. The commissioners call an executive session to discuss with the prosecuting attorney this "potential litigation." Specifically, they intend to discuss with the prosecuting attorney his opinion as to the proposed ordinance's constitutionality. May the commissioners meet in executive session to discuss this?
Resolution: The county commissioners may discuss with their legal counsel in executive session the constitutionality of the proposed ordinance, particularly in light of the threatened legal challenge. They want to have a strong position coming into the litigation. The company's knowledge of their discussion would give it an unfair advantage in framing the constitutional theories in support of its threatened suit against the county. Also, the prosecuting attorney may not feel he can be totally candid with the commissioners in open session.
The company, on the other hand, may argue that the commissioners are not discussing the potential litigation, but rather are only discussing the ordinance. The commissioners should always be aware of the constitutionality of the actions they take. But, that does not mean the commissioners have the authority to meet in executive session any time they are proposing legislation that may implicate constitutional issues. However, given the circumstances here, the commissioners' position should prevail. However, consistent with the definition of “potential litigation” added by the legislature in 2001, the county commissioners may discuss the “legal risks of a proposed action,” in this case, the legal risks of adopting a stringent adult entertainment ordinance, particularly when the company has threatened litigation if the county adopts the ordinance.
(j) To consider, in the case of the state library commission or its advisory bodies, western library network prices, products, equipment, and services, when such discussion would be likely to adversely affect the network's ability to conduct business in a competitive economic climate. However, final action on these matters shall be taken in a meeting open to the public;
The Western Library Network, formerly the Washington Library Network, is established and governed by chapter 27.26 RCW. The State Library Commission has responsibility for the network. This provision allows the commission or its advisory bodies to meet in executive session to consider network prices, products, equipment or services when open discussion of these matters "would be likely to adversely affect the network's ability to conduct business in a competitive economic climate."
(k) To consider, in the case of the state investment board, financial and commercial information when the information relates to the investment of public trust or retirement funds and when public knowledge regarding the discussion would result in loss to such funds or in private loss to the providers of this information;
This provision clearly is designed to protect the integrity of public trust or retirement funds. It allows the state investment board, established and governed by chapter 43.33A RCW, to consider commercial and financial information relating to the investment of such funds in closed session, if discussion in open session would result in loss to those funds or to the private providers of the information.
(l) To consider proprietary or confidential nonpublished information related to the development, acquisition, or implementation of state purchased health care services as provided in RCW 41.05.026;
This provision is self-explanatory.
(m) To consider in the case of the life sciences discovery fund authority, the substance of grant applications and grant awards when public knowledge regarding the discussion would reasonably be expected to result in private loss to the providers of this information.
This provision is also self-explanatory.