The Open Public Meetings Act (OPMA) requires that the meetings and deliberations of the governing body be conducted openly, except as otherwise provided. RCW 42.30.030. The provisions of the OPMA are to be construed liberally, and the exemptions narrowly, to fulfill this mandate. RCW 42.30.910.
The general topics of executive session discussions are not confidential. Those topics are specified in RCW 42.30.110. The OPMA requires that the purpose of going into executive session be publicly announced prior to convening such closed meetings. RCW 42.30.110(2). Governing bodies are encouraged to give sufficient detail of a proposed executive session to ensure compliance with the law. It is also important to emphasize that closed executive sessions are still meetings on behalf of the public, by members in their official capacity. RCW 42.30.110(2).
The Board may meet in a closed executive session to discuss an employee of that agency under several different provisions. However, not all personnel matters are authorized for action in a closed meeting.
First the Board may meet to “evaluate the qualifications of an applicant for public employment or to review the performance of a public employee”. RCW 42.30.110(1)(g). A Washington State Supreme Court case examined this specific provision and generally concluded that the OPMA has required its mandate to be interpreted liberally and its exceptions to be construed narrowly. Miller v. City of Tacoma, 138 Wn.2d 318, 327, 979 P.2d 429 (1999) (citing Mead Sch. Dist. No. 354 v. Mead Educ. Ass’n, 85 Wn.2d 140, 530 P.2d 302 (1975)). The Supreme Court in Miller found that the governing body only had such authority as explicitly specified by the executive session, and that other actions not explicitly authorized by statute were unauthorized for a closed meeting.
Therefore, a narrow construction of this provision allows the Board to review the “job related” performance of a public employee. Discussions of an employee that don’t relate to that employee’s job performance are not authorized by law under this section.
Second, the Board may conduct a closed meeting to “receive and evaluate” a complaint against an employee. RCW 42.30.110(1)(f). This requires an actual complaint to be filed with the Board and not some mere rumor or disagreement. A complaint should be in writing for a couple reasons. It establishes that a complaint has been received by the agency, and it allows the agency to provide required notice to the affected employee. The affected employee has a legal right to require the meeting to be open to the public on the complaint. RCW 42.30.110(1)(f). In order to avoid violating the employee’s right to due process, the Board should provide the employee a copy of the complaint and notice of the hearing so that the employee may choose to exercise their right.
Third, the Board may conduct a closed meeting to “discuss with legal counsel representing the agency litigation or potential litigation” by or against the employee. RCW 42.30.110(1)(i). The agency attorney must be present either physically or telephonically. In order to use this provision for a closed meeting, the litigation must be between the agency and the employee, and not for the discussion of some other agency’s potential litigation. Potential litigation must be more than merely speculative. Potential litigation is defined as either “specifically threatened”, or where an agency “reasonably believes” that litigation may be commenced. RCW 42.30.110(1)(i).
Finally, it should be realized that many, but not all, executive session discussions are confidential. Attorney-client discussions and memos regarding potential litigation would be confidential under RCW 5.60.060(2)(a). The critical question of which executive session discussions are “confidential” will depend on the facts and context of the discussion. While the Code of Ethics for municipal officers does not define the term “confidential”, the state Ethics in Public Service Act does define the term. Both laws relate to the disclosure of confidential information by public servants obtained in the course of that service. The definition for “confidential information” means:
(a) Specific information, rather than generalized knowledge, that is not available to the general public on request or (b) Information made confidential by law.
A single board member may not unilaterally disclose confidential information. The code of ethics for municipal officers applies to elected board members and states:
No municipal officer may disclose confidential information gained by reason of the officer's position, nor may the officer otherwise use such information for his or her personal gain or benefit.
Therefore, a single board member choosing to publicly convey information discussed in executive session should avoid relating specific information that is not available to the public, or made confidential by another law such as the Family Educational Rights and Privacy Act (FERPA). If the information, such as a complaint against an employee, was protected by the FERPA, then an executive session discussion of that complaint should not be publicly disclosed. If the complaint is not protected by the FERPA or other law, then it is subject to disclosure under the state Public Records Act, Ch 42.56 RCW. The executive session provisions do not create any express confidentiality for public records subject to disclosure under the Public Records Act. ACLU v. City of Seattle, 121 Wn. App. 544, 555 (2004). Executive session discussions of non-confidential public records would not likely be confidential.
A common sense guide for determining whether information discussed in executive session is not confidential is to ascertain whether the information is:
- disseminated to board members in their official capacity for the purposes of a related future final action in a public meeting, as opposed to privately communicated for personal reasons; or
- available through public research or through a public records request; or
- available in the news media, internet, or made known at a public forum; or
- used by the board during a public meeting in a related final action.
Additionally, a governing body should be careful when adopting policy or procedure that would restrict a board member’s ability to publicly discuss agency matters raised during executive session. If drafted improperly, such restrictions would likely be an unconstitutional prior restraint of a board member’s First Amendment rights to free speech under the United States Constitution.