Emails can be a “meeting” that trigger the Open Public Meetings Act where there is collective action by members of a governing body on issues that could come before the Board.
The OPMA states “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 chapter.” RCW 42.30.030. The OPMA simply defines “meeting” as “meetings at which action is taken.” RCW 42.30.020(4). In the case of Wood v. Battle Ground School District, 107 Wn. App. 550, 562 (2001) the court found that the broad definition of “action” could encompass various means of communication. It concluded that an exchange of emails can constitute a meeting. Not all emails are ‘meetings’ under the OPMA. However, emails where action is taken on behalf of the governing body would violate the OPMA because email meetings do not provide the public with an opportunity to attend.
However, the court acknowledged that “the mere use or passive receipt of email does not automatically constitute a ‘meeting’.” Id. at 564. The independent examination of documents in preparation of a scheduled public meeting is not a violation of the OPMA. Equitable Shipyards, Inc. v. State, 93 Wn.2d 465, 482 (1980). The OPMA is implicated only when there is collective action by the members of a governing body on “issues that may or will come before the Board for a vote.” Wood at 565.
It is important to understand that whether “action” occurs will be a question of fact. The definition of “action” is very broad and is the transaction of official business including but not limited to “receipt of public testimony, deliberations, discussions, considerations, reviews, evaluations, and final actions.” RCW 42.30.020(3). According to Wood, “passive” receipt of email is not automatically an action. However, the analysis could change if the passive receipt of emails, in addition to other facts, shows that receipt of emails constituted collective action for the “receipt of public testimony” or the “consideration” of official business by the governing body.
In order to avoid an inadvertent “meeting” of a majority of board members, I am providing some common sense suggestions for best practices to comply with the OPMA. Best practices are not required by law, but are merely management tools for ensuring compliance. I recommend the adoption of a policy that provides the following:
- Limit or restrict emails between board members.
- Materials may be emailed to board members in preparation for a meeting. Such materials should be sent by a designated staff contact in order to avoid the appearance that board members are communicating between themselves. Materials may also be made available to board members by posting the materials on a website.
- Emails sent and received between board members that relate to board business should not contain any discussion of the materials.
- Emails sent and received between board members should be on the agency email accounts and not personal email accounts of board members. This ensures that the agency can comply with record retention and disclosure laws.
- Communications between staff and board members should be directed through a designated administrative officer.
- Provide training to all elected members and key staff on the basic requirements of OPMA and the Public Records Act and Records Retention law.
Inadvertent meetings may occur regardless of who initiated the email. If a staff member sends one email to all board members with materials for an upcoming meeting and a board member replies to all recipients, then it is arguable that there is intent for the collective consideration of the responsive email by other board members. Discussions that are procedural, or relate to which matters should be on the agenda, are discussions that directly relate to the business of the governing body. Those discussions should be addressed individually to the designated staff contact or presiding officer of the board, and not collectively to all board members. Even if a judge were to find no violations, email discussions relating to board business by a majority of the governing body create a perception of secret meetings which erode the public trust.
Where a majority of board members receive an email from a fellow board member, recipients should not engage in further discussion. A board member who is merely a recipient of an email discussion is not likely personally liable for violating the OPMA even where the meeting is clearly illegal. However, a member who intentionally violates the OPMA shall be personally liable for a civil penalty of $100. RCW 42.30.120. The best way to protect the governing body and its members from liability for illegal email meetings is to adopt a clear policy which incorporates some of the suggestions in this letter.