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Can informal communications between members of a governing body be a meeting of the governing body?

Can informal communications between members of a governing body be a meeting of the governing body?

(Open Public Meetings Act) Permanent link

The Open Public Meetings Act (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.  Email meetings on behalf of the board of trustees do not provide the public with an opportunity to attend and therefore they would violate the OPMA.

Similarly, private discussions (other than by email) between trustees may constitute an illegal meeting where it involves collective action on behalf of the governing body either through a majority of trustees, or through an actual or de facto committee exercising decision making authority.  The public concern is that such meetings may happen incrementally by one trustee approaching another, and then separately approaching each different trustee on the same topic, until the board has collectively considered an issue that should be discussed in an open public meeting.  This incremental approach is often referred to as a serial or rolling meeting.

A majority of trustees may attend events together provided that no action is taken on official business.  Also, it is not illegal for individual trustees to discuss issues relating to official business with another individual trustee; provided there is no action “on behalf” of the governing body by a de facto exercise of decision making authority. 

Moreover, not all communications to the entire board of trustees will constitute a “meeting” or “action” on behalf of the board.  The court in Wood 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 (on behalf of the board) on “issues that may or will come before the District for a vote.”  Wood at 565. 

It is important to understand that whether “action” occurs on behalf of the board will always depend on the facts.  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 on behalf of the governing body.

In order to avoid an inadvertent “meeting” on behalf of the board of trustees, 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:

  1. Limit or restrict emails between trustees.
  2. Materials may be emailed to trustees in preparation for a meeting.  Such materials should be sent by a designated staff contact in order to avoid the appearance that trustees are communicating between themselves.  Materials may also be made available to trustees by posting the materials on a website. 
  3. Emails sent and received between trustees that relate to district business should not contain any discussion of the materials.
  4. Emails sent and received between trustees should be on the library district email accounts and not personal email accounts of trustees.  This ensures that the library district can comply with record retention and disclosure laws.
  5. Communications between staff and trustees should be directed through a designated administrative officer.  This allows for administrative issues to be scheduled for a public meeting instead of being resolved privately by a few trustees.
  6. Provide training to all elected members and key staff on the basic requirements of the 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 trustees with materials for an upcoming meeting and a district member replies to all recipients, then it is arguable that there is intent for the collective consideration of the responsive email by other trustees. 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 district, and not collectively to all trustees.  Even if a judge were to find that the letter of the law was not violated, email discussions between trustees relating to official business creates a perception of secret meetings which erode the public trust.  

It is often the perception that will govern the adoption of policy for communications between members of a governing body.  Where a majority of trustees receive an email from a fellow trustee, recipients should be hesitant to engage in further discussion for both legal reasons and also out of concern for perceptions.  A district 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.

Posted by Open Government Ombudsman at 07/15/2009 02:54:01 PM 

DISCLAIMER: The "Unredacted" webpage and its content is not intended or offered to provide legal advice or legal representation by the Office of the Attorney General. The attorney general's office provides information, technical assistance, and training on the provisions of the Open Public Meetings Act pursuant to RCW 42.30.210 and provides information to records requestors and state and local agencies about "best practices" for complying with the Public Records Act consistent with the adoption of model rules pursuant to RCW 42.56.570. Send Feedback
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