Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 2018 No. 2 - Jan 29 2018
Attorney General

OPEN PUBLIC MEETINGS ACT—FERRIES—TRANSPORTATION—Application Of The Open Public Meetings Act To Ferry Advisory Committees And The Ferry Advisory Committee Executive Committee

Ferry advisory committees are subject to the Open Public Meetings Act because they are treated as subagencies under the act, the input of which is a necessary prerequisite to certain decisions of the Department of Transportation and the Transportation Commission. In contrast, the Ferry Advisory Committee Executive Committee is not subject to the Open Public Meetings Act.

January 29, 2018

The Honorable Kevin Van De Wege
State Senator, District 24
PO Box 40600
Olympia, WA   98504-0600

 

Cite As:
AGO 2018 No. 2

Dear Senator Van De Wege:

            By letter previously acknowledged, you have requested our opinion on the following question:

RCW 47.60.310 authorizes Ferry Advisory Committees, as well as an executive committee of Ferry Advisory Committees chairs. Are the meetings of the Ferry Advisory Committees and the Ferry Advisory Executive Committee subject to the Open Public Meetings Act, RCW 42.30?

BRIEF ANSWER

            Ferry Advisory Committees created under RCW 47.60.310(2), (3), and (4) are subject to the Open Public Meetings Act because they are subagencies under the Act and their input is a legally necessary prerequisite to certain Department of Transportation and Transportation Commission decisions. In contrast, the Ferry Advisory Executive Committee created under RCW 47.60.310(5) is not subject to the Open Public Meetings Act because its input is not a legally necessary prerequisite to any Department of Transportation or Transportation Commission decisions.

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BACKGROUND

            Application of the Open Public Meetings Act depends in part on the statutory role of Ferry Advisory Committees and the Ferry Advisory Executive Committee, as well as the functions they perform. The Department of Transportation operates the Washington State Ferries and has “full charge of the construction, rehabilitation, rebuilding, enlarging, improving, operation, and maintenance of the ferry system[.]” RCW 47.60.140; see also RCW 47.60.015; http://www.wsdot.wa.gov/ferries/. The Department must annually review ferry fares and pricing. RCW 47.60.290(1). In addition, the Department must periodically review other aspects of the ferry system, including scheduling and allocation of vessels to particular runs. RCW 47.60.300. The Department proposes ferry fare rates to the Transportation Commission, which then sets rates by rule. RCW 47.60.315; see also RCW 47.01.051.

            The county legislative authority for San Juan, Skagit, Clallam, and Jefferson Counties and for any other county that contains ferry terminals must appoint committees “to serve as an advisory committee to the department or its designated representative in such review.” See RCW 47.60.310(2).[1] Depending on the county, Ferry Advisory Committees should have three or five members. RCW 47.60.310(2). At least one person appointed to each committee must be a representative of an established ferry user group or group of frequent users of the ferry system. RCW 47.60.310(2). Each member must reside near the terminal that the advisory committee represents. RCW 47.60.310(2). The statute also specifies other requirements for committee members. RCW 47.60.310(3), (4).

            The legislature has required that Ferry Advisory Committees perform certain functions. The Department’s fare and pricing policy proposals “must” be developed “with input from affected ferry users by public hearing and by review with the affected ferry advisory committees[.]” RCW 47.60.290(2)(c). In addition, before a substantial change in service levels, the Department “shall consult with affected ferry users by public hearing and by review with the affected ferry advisory committees.” RCW 47.60.330(1). The Department must also develop a statewide multimodal transportation plan. RCW 47.06.040. The state ferry system portion of the plan “must be consistent with the regional transportation plans for areas served by the state ferry system, and shall be developed in conjunction with the ferry advisory committees.” RCW 47.06.050(2). Finally, the Commission must conduct a survey to gather data on ferry users “to help inform level of service, operational, pricing, planning, and investment decisions.” RCW 47.60.286(1). The Commission “shall develop the survey after providing an opportunity for ferry advisory committees to offer input.” RCW 47.60.286(2).

            There are 13 Ferry Advisory Committees, all in western Washington. See https://www.wsdot.wa.gov/ferries/CommuterUpdates/pub_meetings. Some local Ferry Advisory Committees publish their past meeting agendas and minutes online. But there has been some confusion about whether Ferry Advisory Committees are subject to the Open Public Meetings Act.

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            By statute, the chairs of the several committees constitute an executive committee “of the Washington state ferry users.” RCW 47.60.310(5). The executive committee must meet twice each year “with representatives of the marine division of the department to review ferry system issues.” RCW 47.60.310(5).[2]

            In sum, the Commission is responsible for setting ferry fare rates by rule, and the annual rates are proposed to the Commission by the Department. RCW 47.60.315. The Department must annually review ferry fares and provide a report and fare proposal to the Commission. RCW 47.60.290(1). Ferry fare proposals must be developed with input from the affected Ferry Advisory Committees. RCW 47.60.290(2). Moreover, before a change in ferry service levels, the Department must consult with the relevant Ferry Advisory Committee. RCW 47.60.330(1). In contrast, the Ferry Advisory Executive Committee is not required by statute to advise on any specific issue before the Department or Commission can act. See RCW 47.60.290, .330.

ANALYSIS

            Whether Ferry Advisory Committees and the Ferry Advisory Executive Committee are subject to the Open Public Meetings Act depends upon whether they meet certain definitions within the Act. We must determine whether the committees are “public agencies” or “subagencies” and whether they are also “governing bodies” as defined.

            The legislature enacted the Open Public Meetings Act as part of “a nationwide effort to make government . . . more accessible and transparent.” West v. Wash. Ass’n of County Officials, 162 Wn. App 120, 131, 252 P.3d 406 (2011). The legislature found that the actions and deliberations of all public commissions, boards, councils, committees, subcommittees, departments, divisions, offices, and all other agencies and subagencies of the state should be conducted openly. RCW 42.30.010. The purpose of the Open Public Meetings Act is remedial, and therefore the Act must be liberally construed. RCW 42.30.910. The Supreme Court has explained that “the purpose of the Act” is to “allow the public to view the decisionmaking process at all stages.” Cathcart v. Andersen, 85 Wn.2d 102, 107, 530 P.2d 313 (1975).

            The Open Public Meetings Act provides that “[a]ll meetings of the governing body of a public agency shall be open and public[.]” RCW 42.30.030. “Public agency” includes (but is not limited to) “(a) [a]ny state . . . commission, committee, department . . . or other state agency which is created by or pursuant to statute” or “(c) [a]ny subagency of a public agency which is created by or pursuant to statute, ordinance, or other legislative act[.]” RCW 42.30.020(1) (emphases

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added).[3] Consistent with this statutory language, we have distinguished a subagency created by a specific statute or ordinance from discretionary ad hoc committees created pursuant to general, implied executive authority. AGO 1983 No.1, at 2.

             “Governing body” means “[1] the multimember board, commission, committee, council, or other policy or rulemaking body of a public agency [including subagencies], or [2] 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) (emphasis added). An entity need not be the final decisionmaker for the Open Public Meetings Act to apply. Cathcart, 85 Wn.2d at 107 (recognizing that the decisions of the UW Law School faculty were subject to the Act even though the faculty’s decisions could ultimately be superseded through rules adopted by the Board of Regents or executive orders issued by the University President).[4]

            Similarly, the word “advisory” in the title of a committee is not determinative. E.g., Clark v. City of Lakewood, 259 F.3d 996, 1013 (9th Cir. 2001) (concluding that the Open Public Meetings Act applies to a task force of a Planning Advisory Board). Instead, we have concluded that in order to be a governing body covered by the Open Public Meetings Act, an advisory committee or other advisory body created by legislative act must also possess some aspect of policy or rulemaking authority. AGO 1983 No. 1, at 3; see also Loeffelholz v. Citizens for Leaders With Ethics & Accountability Now, 119 Wn. App. 665, 704, 82 P.3d 1199 (2004). “In other words, [an advisory committee’s] ‘advice,’ while not binding upon the agency with which it relates (otherwise it would not be an advisory committee at all), must nevertheless be legally a necessary antecedent to that agency’s action” for the Open Public Meetings Act to apply. AGO 1983 No. 1, at 3 (quoting AGO 1971 No. 33, at 9). Consistent with this conclusion, the Court of Appeals has emphasized that “[w]hen public dollars support activities by taxpayer-supported entities to which the legislature has assigned specific statutory duties, performance of these duties must be verifiable by members of the public.” West, 162 Wn. App. at 134.

            The Open Public Meetings Act therefore applies (1) if a Ferry Advisory Committee or the Ferry Advisory Executive Committee is a “governing body” of a “public agency” or “subagency,” or (2) if it is a committee of an agency’s governing body that “acts on behalf of the governing body, conducts hearings, or takes testimony or public comment.” RCW 42.30.020(2). A Ferry Advisory Committee can be a “governing body,” even if it is merely advisory, if its participation is a legally necessary antecedent to an agency’s action. AGO 1983 No. 1, at 3.

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            Ferry Advisory Committees and the Ferry Advisory Executive Committee are not “public agencies” under section (a) of the definition of that term covering certain state entities. The Court of Appeals has interpreted RCW 42.30.020(1)(a) to be restricted to entities with an enabling statute that “carry[] out a statewide public function.” West, 162 Wn. App. at 132. The Ferry Advisory Committees are local committees appointed by local government officials that advise the Department and the Commission regarding the operation of specific ferry routes. See RCW 47.60.310. Thus, Ferry Advisory Committees are not “state committees” under the definition of “public agency” in RCW 42.30.020(1) because they do not carry out a statewide function.

            The Ferry Advisory Executive Committee is made up of the chairs of each of the local Ferry Advisory Committees. RCW 47.60.310(5). The Ferry Advisory Executive Committee presents a closer question, but it is not statewide in character and it consists of locally appointed members. RCW 47.60.310(5). On balance, we believe it is unlikely that the Ferry Advisory Executive Committee is a multimember state entity to which the Open Public Meetings Act applies under subsection (a) of the definition of “public agency.” See RCW 42.30.020(1)(a).

            We turn next to whether the Ferry Advisory Committees or the Ferry Advisory Executive Committee is a “subagency of a public agency which is created by or pursuant to statute, ordinance, or other legislative act[.]” RCW 42.30.020(1)(c). The Ferry Advisory Committees and the Ferry Advisory Executive Committee are all created or authorized by statute. RCW 47.60.310. The Department must consult with the Ferry Advisory Committees in developing its ferry fare rate proposal for the Commission. RCW 47.60.290(2)(c). The Department shall also consult the relevant Ferry Advisory Committee before changing ferry service levels. RCW 47.60.330(1). Thus, a Ferry Advisory Committee’s advice is required by law before a ferry fare or service level change can ultimately be recommended or adopted by the Department or the Commission. A Ferry Advisory Committee’s advice is “legally a necessary antecedent to” the Department’s and Commission’s review of ferry fares or service levels. AGO 1983 No. 1, at 3 (quoting AGO 1971 No. 33, at 9). The Ferry Advisory Committees therefore “possess[] some aspect of policy or rule-making authority,” making them a “governing body” and a “subagency” subject to the Open Public Meetings Act. AGO 1971 No. 33, at 9.

            We are aware that the Supreme Court has applied a different analysis when considering whether the committee at issue is a “governing body” under the “committee thereof” prong of that definition, rather than a “subagency” created by statute or other legislative act. In 1983, the legislature amended the definition of “governing body” to add “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 (emphasis added). A committee created pursuant to the general executive authority of an agency may be a “committee thereof,” but this type of committee is different from a “subagency” created by statute. Compare AGO 1983 No.1, at 2 and AGO 1986 No. 16, at 5 with Citizens All. for Prop. Rights Legal Fund v. San Juan County, 184 Wn.2d 428, 439, 359 P.3d 753 (2015) (addressing committees created by governing bodies rather than by

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statute or other legislative act). Where a committee is a “committee thereof,” it must “act on behalf of” the agency in order for the Open Public Meetings Act to apply. The “committee thereof” prong “does not extend to the work of purely advisory bodies” where they do not conduct hearings, take testimony, or take public comment. Citizens All., 184 Wn.2d at 441; see also AGO 1986 No. 16, at 5-6. In contrast, where a committee is a “governing body” and a “subagency” created by statute, the Open Public Meetings Act applies if the committee possesses “some aspect of policy or rule‑making authority” as discussed in our prior Attorney General Opinions. See AGO 1983 No. 1, at 3 (quoting AGO 1971 No. 33, at 9).

            The Ferry Advisory Executive Committee differs from the Ferry Advisory Committees in this regard. While the Ferry Advisory Executive Committee must by statute meet twice a year with the Department, RCW 47.60.310(5), nothing in statute makes that consultation with the Ferry Advisory Executive Committee a legally required antecedent to any specific Department or Commission decision. Thus, it does not appear that the Ferry Advisory Executive Committee serves as a “governing body” of a “subagency” under the Open Public Meetings Act.

            Because we conclude that the Open Public Meetings Act applies to Ferry Advisory Committees, we also briefly address the consequence if any Ferry Advisory Committee has failed to comply with the Open Public Meetings Act before now. If a Ferry Advisory Committee has taken “action” in violation of the Open Public Meetings Act, then that action is null and void under the statute. RCW 42.30.060(1).

            “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.” RCW 42.30.020(3). “Final action” means “a collective positive or negative decision, or an actual vote by a majority of the members of a governing body[.]” RCW 42.30.020(3). Nevertheless, the Open Public Meetings Act “does not require that subsequent actions taken in compliance with the Act also be held null and void.” E.g., Clark, 259 F.3d at 1014 (subsequent actions taken by a different entity are not null and void where an advisory body failed to comply with the Open Public Meetings Act). Thus, Commission decisions adjusting ferry fares, for example, would not be affected so long as the Commission complied with the Open Public Meetings Act when it adopted fares. Moreover, because the Open Public Meetings Act does not apply to agencies that are not led by a multimember body, Department decisions likewise would not be called into question. Loeffelholz, 119 Wn. App. at 700, 703 (if the agency is governed by an individual, then the Open Public Meetings Act does not apply); RCW 42.30.020 (a governing body under the Open Public Meetings Act is a multimember body); RCW 47.01.101 (Secretary of Transportation—Authority and duties).

            The Open Public Meetings Act also provides for monetary penalties against members of a multimember governing body who attend a meeting where action is taken in violation of the Act, but only where he or she knew an action was being taken in violation of the Act. RCW 42.30.120; Loeffelholz, 119 Wn. App. at 702; see also West, 162 Wn. App. at 128 (in order to prevail on an Open Public Meetings Act claim, the plaintiff must show, among other things, that members of a

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governing body took action at a meeting, and they did so with knowledge that the meeting violated the statute). Thus, members of a Ferry Advisory Committee would not be subject to monetary penalty for failure to comply with the Open Public Meetings Act unless the member knew he or she was violating the Act.

            We trust that the foregoing will be useful to you.

ROBERT W. FERGUSON
Attorney General

Rebecca R. Glasgow
Deputy Solicitor General

wros


[1] The statute provides one exception. The Ferry Advisory Committee for Vashon Island is appointed by the Vashon/Maury Island community council. RCW 47.60.310(2).

[2] We are aware that the Ferry Advisory Executive Committee members or their designees are also members of the Ferry Advisory Committee—Tariff (FACT), an advisory committee to the Transportation Commission and the Department of Transportation that was created by those entities, not by statute. http://wstc.wa.gov/Rates/FerryFares/FACT.htm. This opinion does not address FACT.

[3] RCW 42.30.020(1)(b) provides that certain local government entities, including counties, cities, school districts, special purpose districts, and other municipal corporations or political subdivisions are “public agencies” under the Open Public Meetings Act.

[4] But see Refai v. Cent. Wash. Univ., 49 Wn. App. 1, 13, 742 P.2d 137 (1987) (applying the pre-1983 Open Public Meetings Act and distinguishing a faculty senate executive committee because it was not created by legislation and the committee did not have authority to make final decisions).