OPEN PUBLIC MEETINGS ACT
Chapter last revised: October 31, 2016
The Open Public Meetings Act (“OPMA”), chapter 42.30 RCW, was passed by the Legislature in 1971 as a part of a nationwide effort to make government affairs more open, accessible and responsive. It was modeled on a California law known as the "Brown Act" and a similar Florida statute. The OPMA and the Public Records Act (PRA), chapter 42.56 RCW, create important and powerful tools enabling the people to inform themselves about their government, both state and local.
As with all laws, the courts will interpret the OPMA to accomplish the Legislature's intent. RCW 42.30.010 declares the OPMA’s purpose in a strongly worded statement:
The legislature finds and declares that all public commissions, boards, councils, committees, subcommittees, departments, divisions, offices, and all other public agencies of this state and subdivisions thereof exist to aid in the conduct of the people's business. It is the intent of this chapter that their actions be taken openly and that their deliberations be conducted openly. The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.
The OPMA also provides that, “The purposes of this chapter are hereby declared remedial and shall be liberally construed.” RCW 42.30.910. Exceptions to the openness requirements of the OPMA (such as the grounds for executive sessions) are narrowly construed. Miller v. City of Tacoma (1999).
The OPMA requires that meetings of the “governing body” of a "public agency" be open to the public. RCW 42.30.030.
A “public agency” is defined in RCW 42.30.020(1) to include:
- Any state board, commission, committee, department, educational institution, or other state agency that is created by statute;
- Any county, city, school district, special purpose district, or other municipal corporation or political subdivision of the state;
- Any “subagency” of a public agency that is created by statute, ordinance, or other legislative act, such as planning commissions and library or park boards.
A “public agency” for purposes of the OPMA does not include:
- Any court;
- The Legislature.
The OPMA also applies to the governing bodies of any “subagency” of state and local government agencies. Although a “subagency” is not defined in the OPMA, a subagency must be “created by a statute, ordinance, or other legislative act.” RCW 42.30.020(1)(c). Case law and attorney general opinions suggest that, to be a subagency, the entity established by legislative act must have some policy or rule making authority. See Loeffelholz v. Citizens for Leaders with Ethics & Accountability Now (2004); 1983 Att’y Gen. Op. No. 1; 1971 Att’y Gen. Op. No. 33.
The courts have interpreted the OPMA to apply to "an association or organization created by or pursuant to statute which serves a statewide public function." West v. Wash. Ass'n of Cnty. Officials (2011).
The OPMA may also apply to the “functional equivalent” of a public agency, though the courts have yet to address that issue squarely. In a 1991 opinion, the Attorney General suggested a four-part test to be used in determining whether an entity is a “public agency” and subject to the OPMA: “(1) whether the organization performs a governmental function; (2) the level of government funding; (3) the extent of government involvement or regulation; and (4) whether the organization was created by the government.” 1991 Att’y Gen. Op. No. 5. The courts have applied these factors to determine whether an entity is the “functional equivalent” of a public agency for purposes of the Public Records Act. Telford v. Thurston County Board of Commissioners (1999); Clarke v. Tri-Cities Animal Care & Control Shelter (2008); Woodland Park Zoo v. Fortgang (2016). However, the courts have yet to apply this test to that question for purposes of the OPMA.
A “governing body” is defined in the OPMA as “the multimember board, commission, committee, council, or other policy or rule-making body of a public agency, or 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).
All local public agencies and some state agencies have governing bodies and those governing bodies are subject to the OPMA. Examples of governing bodies of local public agencies include the city council, county council, port commission and school board; examples of governing bodies of state agencies include the Gambling Commission, the Utilities and Transportation Commission and the Public Disclosure Commission.
Some agencies do not have governing bodies. For example, many state agencies, such as the Department of Labor and Industries, the Department of Licensing, the Department of Social and Health Services, the Department of Employment Security, and the Washington State Patrol are governed by an individual, not a multimember body, and thus are not subject to the OPMA. See Salmon for All v. Department of Fisheries (1992), in which the Court held that the Department of Fisheries was not subject to the OPMA because it was governed by an individual, the director.
With subagencies, the governing body of the subagency is often the subagency itself, as in the example of a county planning commission or city parks board.
The definition of governing body includes “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). In 2015, the State Supreme Court concluded that: (1) a “committee thereof” means committees created by a governing body pursuant to its executive authority, regardless of whether the committee includes members of the governing body; and (2) a committee acts on behalf of the governing body “when it exercises actual or de facto decision-making authority for the governing body.” Citizens Alliance v. San Juan County (2015). A committee is not exercising such authority when it is simply conducting internal discussions or providing advice or information to the governing body. Id.; see also Clark v. City of Lakewood (2001).
It is not clear whether a committee of a governing body is required to give notice for all of its meetings when it is only at some of its meetings that it is acting so as to come within the definition of “governing body.” Nevertheless, it would be pragmatic for such committees that sometimes engage in such activities - acting on behalf of the governing body, conducting hearings, or taking testimony or public comment - to conduct all their business in open meetings.
Case Example: The seven-member city council is considering the purchase of public art. The council agrees that public input would assist the selection process. Some councilmembers believe that the creation of an arts commission that would adopt policies for the city’s acquisition of public art would “get politics out of the world of art.” Other councilmembers express concern that an arts commission will control too much of the process without significant council input. Three resolutions are drafted for council consideration:
The first establishes a city arts commission and details the method of selecting the members, including three city councilmembers and two citizen members, who would serve specific terms. The commission is directed to establish policies for the selection and placement of public art in the city. Its recommended policies will be subject to city council approval. It is directed to obtain public input before the adoption of the recommended policies. As funding becomes available, it will make recommendations to the city council regarding the purchase of works of public art and their location in the city.
The second resolution establishes a public arts committee of the city council consisting of three members of the council. Five interested citizens will be asked to participate in its determination of worthy projects. The citizens would serve at the pleasure of the council. The public arts committee is directed to develop a list of citizens who have expressed interest in public art and to hold hearings seeking public comment regarding any recommendations that the committee might make to the full city council.
The third resolution recognizes the existence of a citizen’s committee known as “Public Art Now!” that was formed by a councilmember. The committee would be authorized to use city’s meeting rooms. The council would welcome the committee’s advice regarding the selection and placement of public art and its recommendations would be considered at any public hearing when the council decided to purchase works of art.
What would be the consequences under the OPMA of the adoption of each resolution?
Resolution: The city arts commission is probably a “subagency” under the OPMA. It has been created by legislative act and its governing body is directed to develop policy for the city. As such, all of its meetings would be subject to the OPMA’s requirements.
The public arts committee is probably a “committee” of the governing body, the city council. It is not a separate entity (subagency). Since it will be obtaining public input, at least some of its meetings would be subject to the OPMA. However, it is advisable that it hold all its meetings in open session.
“Public Art Now!” is not subject to the OPMA. The city council did not establish it or grant it any authority.
In its definition section, the OPMA first defines “action” before defining a “meeting” as a meeting “at which action is taken.” RCW 42.30.020(4). “Action” is defined to mean “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” is defined as “a collective positive or negative decision, or an actual vote by a majority of the members of a governing body when sitting as a body or entity, upon a motion, proposal, resolution, order, or ordinance.” Id. It is not necessary for a governing body to take “final action” for there to be a “meeting” that is subject to the requirements of the OPMA; mere “action,” such as a discussion of agency business, is sufficient. However, it is not "action" for members of a governing body to individually review material in advance of a meeting at which a public contract was awarded. Equitable Shipyards, Inc. v. State (1980).
A “meeting” occurs when, with a collective intent to meet, a majority of the members of a governing body collectively transact the governing body’s official business. Citizens Alliance v. San Juan County (2015).
Ordinarily, a quorum (majority) of the members of a governing body must be present at a meeting for the governing body to be able to transact agency business. Citizens Alliance v. San Juan County (2015). As such, a meeting that would be subject to the OPMA occurs if a majority of the members of a governing body were to discuss or consider agency business, no matter where that discussion or consideration might occur. “Action” by less than a quorum is generally not subject to the OPMA. Eugster v. City of Spokane (2005); Citizens Alliance v. San Juan County (2015). However, as discussed above, a committee of a governing body that includes less than a quorum of the body may be subject to the OPMA in certain circumstances.
Physical presence by the members of a governing body is not necessary for there to be a “meeting.” For example, an email exchange among a quorum of a governing body in which “action” takes place is a “meeting” under the OPMA. Wood v. Battle Ground School Dist. (2001). Since an email exchange among a quorum of the members of a governing body is not open to the public, such an exchange in which “action” takes place would violate the OPMA. In contrast, mere passive receipt of emails does not constitute participation in a meeting. Wood v. Battle Ground School Dist. (2001); Citizens Alliance v. San Juan County (2015).
It is generally agreed that an agency may authorize one or more of its members to attend a meeting by telephone or video-conferencing, using technologies such as Skype or WebEx, when a speaker phone or video screen is available at the official location of the meeting so the governing body and the public can hear the member's input and the member can hear what is said at the meeting. See also Wood v. Battle Ground School Dist. (2001) (physical presence not required in order for meeting to occur); 2014 Att’y Gen. Op. No. 7 (discussion of videoconferencing)
A quorum of members of a governing body may attend a meeting of another organization’s provided that the body takes no “action.” 2006 Att’y Gen. Op. No. 6. For example, a majority of a city council could attend a meeting of a regional chamber of commerce or a county commission meeting provided that the council members did not discuss city business or do anything else that constitutes an “action.”
The OPMA expressly permits the members of the governing body to travel together or engage in other activity, such as attending social functions, so long as they do not take “action.” RCW 42.30.070.
Case example: The five-member school board attends the annual convention of the State School Association. Over dinner, three members discuss some of the ideas presented during the convention, but refrain from any conversation about how they might apply them to the school district. All five travel together to and from the convention and the only discussion is over whether they are lost.
Resolution: No violation occurred but the board members must be careful. The example is offered to highlight the level of awareness members of a governing body must have. It is not unusual for such situations to arise. For instance, the dinner discussion was among a majority of the members so a discussion about school district business would have been "action" and, without the required notice, would be in violation of the OPMA.
The OPMA does not apply to certain types of meetings. RCW 42.30.140 provides that the OPMA does not apply to:
- Meetings involved with the issuing, denying, suspending, or revoking business, professional, and certain other licenses, including disciplinary proceedings
- Quasi-judicial proceedings
- Meetings involving matters subject to the Administrative Procedure Act, chapter 34.05 RCW
- Collective bargaining negotiations and related discussions, and meetings involved with planning for such negotiations and for grievance and mediation proceedings
The exact wording of RCW 42.30.140 should be consulted to determine whether an exemption applies.
When a governing body engages in any of these exempt activities, it is not required to comply with the OPMA, although other public notice requirements may apply. Some exempt activities, such as quasi-judicial matters or hearings governed by the Administrative Procedure Act (chapter 34.05 RCW), have their own notice requirements. Quasi-judicial matters are those where the governing body is required to determine the rights of individuals based on legal principles. Common examples of quasi-judicial proceedings are certain local land use decisions, such as site-specific rezones, conditional use permits, and variances.
Case example: During a break in the regular meeting, the city council gets together in the chambers to decide what they should do with regard to the union's latest offer. They authorize the negotiator to accept the offer on wages if the union will accept the seniority amendments. When they return to the meeting, nothing is said about the discussion or decision.
Answer: The OPMA specifically exempts the discussion and decisions about the collective bargaining strategy or position from its requirements. Since it was exempt, the discussion was not required to be open.
The OPMA does not provide grounds for exempting public records from disclosure. See Am. Civil Liberties Union v. City of Seattle (2004). An independent exemption under the Public Records Act or other statute must exist to exempt records from disclosure. See Chapter 2.1. Therefore, even though collective bargaining matters can be discussed in a closed session, this is not a basis for withholding public records reviewed in the executive session relating to that topic.
Under the OPMA, public agencies must give notice of regular and special meetings. See Chapter 3.6 for details.
"Secret" votes - where individual votes are not divulged - are prohibited, and any votes taken in violation of the OPMA are null and void. RCW 42.30.060(2). The votes of the members of a governing body should be publicly announced at the time the vote is taken.
The OPMA provides that any member of the public may attend the meetings of the governing body of a public agency. The agency may not require people to sign in, complete questionnaires, or establish other conditions to attendance. RCW 42.30.040. For instance, an agency could not limit attendance to those persons subject to its jurisdiction. The OPMA does not address whether an agency is required to hold its meeting at a location that would permit every person to attend. However, it seems clear that the courts would discourage any attempt to deliberately schedule a meeting at a location that was too small to permit full attendance or that was locked. RCW 42.30.050.
A person may record (audio or video) a meeting provided that it does not disrupt the meeting. 1998 Att’y Gen. Op. No. 15. A stationary audio or video recording device would not normally disrupt a meeting.
If those in attendance are disruptive and make further conduct of the meeting unfeasible, those creating the disruption may be removed. RCW 42.30.050; In re Recall of Kast (2001). If order cannot be restored to the meeting by the removal of persons disrupting the meeting, the meeting room may be cleared and the meeting continued, or the meeting may be reconvened in another location. However, members of the media are entitled to attend the adjourned meeting and the governing body is limited to act only on those matters on the agenda. The governing body may also authorize readmitting persons not responsible for disrupting the meeting. Id.
Case example: The school board schedules a special meeting to discuss a controversial policy question. It becomes obvious that the regular meeting room is too small for all of those trying to attend the meeting. The board announces that the meeting will be adjourned to an auditorium in the same building. The chair announces that those who wish to speak should sign in on the sheet on the table. She states that given the available time, speakers will be limited to three minutes each. At one point, the meeting is adjourned to remove an apparently intoxicated person who had been interrupting the comments of speakers.
Resolution: While the OPMA allows the public to attend all meetings, it does not allow for the possibility of insufficient space. Presumably, if a nearby location is available, the governing body should move there to allow attendance by adjourning the meeting to that location and posting a notice on the door (RCW 42.30.090). The chair can require those who wish to speak (but not all attendees) to sign in. The sign-in requirement for speaking does not restrict attendance, only participation. Since the OPMA does not require the governing body to allow public participation, the time for each speaker can also be limited. The governing body can maintain order by removing those who are disruptive.
The OPMA does not require a governing body to allow public comment at a public meeting. If a governing body does allow public comment, it has authority to limit the time of speakers to a uniform amount (such as three minutes) and the topics speakers may address.
A “meeting” under the OPMA is either a “regular” meeting or a “special” meeting, with different notice requirements for each. So, for example, a meeting designated as a “retreat,” “study session,” or “workshop” is, for OPMA purposes, either a regular or a special meeting, depending on how it is held.
The OPMA requires agencies to identify the time and place their governing bodies will hold regular meetings, which are defined as "recurring meetings held in accordance with a periodic schedule declared by statute or rule." RCW 42.30.075. State agencies subject to the OPMA must publish their schedule in the Washington State Register, while local agencies (such as cities and counties) must adopt the schedule "by ordinance, resolution, bylaws, or by whatever other rule is required for the conduct of business by that body." RCW 42.30.075; RCW 42.30.070. Although the OPMA does not require local agency governing bodies to meet inside the boundaries of their jurisdiction, there is general agreement that agencies should not schedule meetings at locations that effectively exclude the public. Other statutes may require certain entities to hold their meetings at particular locations, such as RCW 36.32.080, which requires a board of county commissioners to hold regular meetings at the county seat, or at the alternate locations specified in that statute.
If a scheduled regular meeting falls on a holiday, it must be held on the next business day. RCW 42.30.070.
The OPMA requires agencies with governing bodies to make the agenda of regular meetings available online at least 24 hours in advance of the meeting. RCW 42.30.077. This requirement does not apply if the agency does not have a website or if it employs fewer than 10 full-time equivalent employees. Also, an agency can modify the agenda after it is posted online. A failure to comply with the notice requirement with respect to a regular meeting will not invalidate an otherwise legal action taken at the meeting.
Whenever an agency has a meeting at a time other than a scheduled regular meeting, it is conducting a "special meeting." RCW 42.30.080. For each special meeting, the OPMA requires at least 24 hours’ written notice to:
- the members of the governing body, delivered personally, or by mail, fax, or email;
- media representatives (newspaper, radio, and television) who have filed a written request for notices of a particular special meeting or of all special meetings, delivered personally, or by mail, fax, or email; and
- the public, by posting on the agency website and by prominently posting it at the main entrance of the agency's principal location and at the meeting site if the meeting will not be held at the agency's principal location.
An agency is not required to post the public notice on its website if it does not have one, if it has fewer than 10 full-time equivalent employees, or if doesn’t employ personnel whose job it is to maintain the website.
The OPMA does not provide any guidance as to whether the media's written request for notice must be renewed; it is advisable, however, to periodically renew such requests to ensure that they contain the proper contact information for the notice and have not been misplaced or inadvertently overlooked due to changes in agency personnel.
The notice of a special meeting must specify the time and place of the meeting and "the business to be transacted,” which would normally be an agenda. At a special meeting, final disposition by the agency is limited to the matters identified as the business to be conducted in the notice. The statutory language suggests that the governing body could discuss, but not finally dispose of, matters not included in the notice of the special meeting.
A member of the governing body may waive the required notice by filing a written waiver or by simply appearing at the special meeting. Estey v. Dempsey (1985). The failure to provide notice to a member of the governing body can only be asserted by the person who should have received the notice, not by any person affected by action at the meeting. Kirk v. Pierce County Fire Protection Dist. No. 21 (1981).
The OPMA provides that, in the event of an emergency such as a fire, flood, or earthquake, meetings may be held at a site other than the regular meeting site, and the notice requirements of the OPMA are suspended during the emergency. RCW 42.30.070. An agency should, however, provide special-meeting notice of an emergency meeting, if practicable. RCW 42.30.080(4).
The courts have found that an agency must be confronted with a true emergency that requires immediate action, such as a natural disaster, for its governing body to hold an emergency meeting that does not comply with the OPMA. It has been held that a strike by teachers did not justify an "emergency" meeting by the school board. Mead School Dist. No. 354 v. Mead Education Ass'n (1975).
The OPMA establishes procedures for a governing body to adjourn a regular or special meeting and continue that meeting to a time and place identified in an order of adjournment. RCW 42.30.090. Less than a quorum of a governing body may adjourn and continue a meeting under these procedures, or the clerk or secretary of the body may do so if no members are present. Notice of the meeting adjournment must be the same that is required for special meetings in RCW 42.30.080, and a copy of the order or notice of adjournment must be posted on or near the door of the place where the meeting was held. Although the OPMA does not address cancellations, presumably the same process could be followed in cancelling a meeting.
"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 a 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. 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 (1999).
To convene an executive session, the governing body’s presiding officer must announce: (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. RCW 42.30.110(2).
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 information 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." 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.
Case Example: Three members of a five-member school board meet privately, without calling a meeting, to exchange opinions of candidates for the school superintendent position. They justify this private meeting on the ground that the board may meet in executive session to discuss the qualifications of applicants for the superintendent position, under RCW 42.30.110(1)(g). Have these school board members complied with RCW 42.30.110?
Resolution: Clearly, they have not. Although a governing body may discuss certain matters in closed session under this statute, that closed session must occur during an open regular or special meeting and it may be commenced only by following the procedures in RCW 42.30.110(2). The public must know the board is meeting in executive session and why. Although, as discussed above, some matters are not subject to the Open Public Meetings Act under RCW 42.30.140; however, the above example is not one of them.
An executive session may be held only for one of the purposes identified in RCW 42.30.110(1), as follows:
(a) 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.
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 this provision, 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 (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 (1977). However, the Washington Supreme Court in Miller v. City of Tacoma (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 (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.
(c) Sale or Lease of Agency Property
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.
This provision also states that final action selling or leasing public property must be taken in an open meeting. That statement 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 seemingly defeat the purpose of this subsection. But see Miller v. City of Tacoma (1999) and discussion in Chapter 3.9B(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) Performance of Publicly Bid Contracts
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.
(e) Consideration of Certain Information by an Export Trading Company
This provision, which authorizes consideration in executive session of financial and commercial information supplied by private persons to an export trading company, 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) Complaints or Charges Against Public Officer or Employee
This provision authorizes executive sessions to receive and evaluate complaints or charges brought against a public officer or employee. It 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 this provision, 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 for the officer or employee to request that a public hearing or open meeting be held regarding the complaint or charge.
(g) Evaluating Qualifications or Performance of a Public Employee/Official
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 this 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 in an executive session that eliminate candidates from consideration. Miller v. City of Tacoma (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 school board selecting a superintendent may evaluate qualifications of applicants in an executive session under this provision. Under this provision, the board must confine its executive session discussion to applicant evaluations only, and must make decisions in a meeting open to the public. For more information, see the Attorney General’s Office “Open Public Meetings Act Guidance on Frequently Asked Questions About Processes to Fill Vacant Positions by Public Agency Governing Boards and Some Suggested Practice Tips” (June 1, 2016).
(h) Evaluating Candidates for Elective Office
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-sewer districts. Under this provision, an elected governing body may evaluate the qualifications of 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.
For more information, see the Attorney General’s Office “Open Public Meetings Act Guidance on Frequently Asked Questions About Processes to Fill Vacant Positions by Public Agency Governing Boards and Some Suggested Practice Tips” (June 1, 2016).
(i) Litigation, Potential Litigation, or Enforcement Actions
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.
This provision for an executive session defines “potential litigation” as matters that are protected by attorney-client privilege concerning:
- 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;
- 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
- 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 definition permits discussions by an agency governing body of actions that involve a genuine legal risk to the agency. This allows a governing body to freely consider the legal implications of a proposed decision without the 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. In Port of Seattle v. Rio (1977), the Court of Appeals stated that a closed executive session with legal counsel to discuss settlement or avoidance of litigation is proper because “A public agency should neither be given an advantage, nor placed at a disadvantage in litigation.” The Washington Supreme Court, in Recall of Lakewood City Council (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. 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 (2003), the federal Ninth Circuit Court of Appeals invalidated a “collective positive decision” of a governing body in executive session to approve a settlement agreement. The Feature Realty court relied on the Washington Supreme Court’s holding in Miller v. City of Tacoma (1999) that a governing body can only take an action in executive session “explicitly specified” in an exemption to the OPMA.
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 v. City of Tacoma (1999). 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 a governing body 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 – specifically that the company threatened to sue - the commissioners’ position should prevail. 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) Western Library Network Prices, Products, Equipment, and Services
This provision for executive session no longer has any applicability, as the State Library Commission has been abolished and the Western Library Network statutes have been repealed. See RCW 27.04.900 and former chapter 27.26 RCW.
(k) State Investment Board Consideration of Financial and Commercial information
This provision allows the State Investment Board, established and governed by chapter 43.33A RCW, to consider commercial and financial information relating to the investment of public trust or retirement 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) Information Related to State Purchased Health Care Services
This provision allows executive sessions 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.
(m) Life Sciences Discovery Fund Authority Grant Applications and Grant Awards
(n) Health Sciences and Services Authority Grant Applications and Grant Awards
The above two provisions allow executive sessions to “consider…the substance of grant applications and grant awards” related to the Life Sciences Discovery Fund Authority and the Health Sciences and Services Authority “when public knowledge regarding the discussion would reasonably be expected to result in private loss to the providers of this information.”
The OPMA’s standing requirements are very broad; any person may challenge an action based on a violation of the OPMA through a suit in superior court as provided in RCW 42.30.120 and RCW 42.30.130. See also West v. Seattle Port Commission, et al. (2016) (holding that West, a “person,” had standing to bring an OPMA challenge related to a series of confidential meetings between Port of Seattle and Port of Tacoma commissioners). Four distinct remedies are available to persons under the OPMA:
- Nullification of actions taken in illegal meetings (RCW 42.30.060(1))
- Civil penalties of $500 per member of the governing body for the first knowing violation of the OPMA and $1000 per member for any successive knowing violation (RCW 42.30.120(1) and (2))
- An award of costs and reasonable attorney fees for any person prevailing in an action alleging an OPMA violation (RCW 42.30.120(2))
- Mandamus or injunction to stop OPMA violations or prevent threatened violations (RCW 42.30.130)
If the court determines that a public agency has taken action in violation of the OPMA, that action is null and void. RCW 42.30.060(1). If an agency’s action is null and void as a result of an OPMA violation, the agency must re-trace its steps by taking the action in accordance with the OPMA in order to make that action valid. See Henry v. Town of Oakville (1981); Feature Realty v. City of Spokane (2003) (agency re-tracing of steps must be done in public). But if the OPMA violation occurs early in the governing body’s consideration of a matter, subsequent actions taken in compliance with the OPMA, including the final action, are valid. OPAL v. Adams County (1996); see also 1971 Att’y Gen. Op. No. 33 at 40.
If a court determines that a governing body violated the OPMA, each member of the governing body who attended the meeting with knowledge that the meeting was in violation of the OPMA is subject to a $500 civil penalty. RCW 42.30.120. A violation of the OPMA is not a criminal offense.
A court must award all costs, including attorney fees, to a party who is successful in asserting an OPMA violation against an agency. RCW 42.30.120(2). If the court finds that the lawsuit against the agency is frivolous, the agency may recover its attorney fees and expenses. The only statutory remedy is an action filed in superior court. RCW 42.30.120(2).
Also, an OPMA violation may provide a sufficient legal basis for a recall effort against a local elected official. See, e.g., In re Recall of Lakewood City Council Members (2001); In re Recall of Kast (2001).
Case example: In July 2016 and prior to a regular meeting, two members of a three-member board of county commissioners communicate by email about an ordinance to be considered at the upcoming regular meeting. At that meeting, the board discusses and then adopts the ordinance the two commissioners had discussed by email. After making a PRA request for the commissioners’ emails, a county resident challenges the validity of the ordinance based on an alleged violation of the OPMA when the two commissioners discussed the ordinance by email.
Answer: The email discussion by the two commissioners was “action” under the OPMA, and, since it did not occur in a meeting open to the public, it was a violation of the OPMA. The two commissioners are personally liable for the $500 penalty if they knew the email discussion was in violation of the OPMA. It seems unlikely that the commissioners would not have known that their email discussion was in violation of the OPMA, and so they will likely be subject to that penalty.
The ordinance adopted by the commissioners after discussion in an open meeting should not be invalidated based on the improper email discussion. The board discussed the ordinance and voted on it in open session, in compliance with the OPMA. So, despite the earlier OPMA violation, the board subsequently complied with the OPMA in adopting the ordinance.
All members of state and local governing bodies must receive training on the requirements of the OPMA. RCW 42.30.205. The training must be completed within 90 days after a governing body member takes the oath of office or otherwise assumes the duties of the position. The training must be repeated at intervals of no longer than four years, as long as an individual is a member of the governing body. The law does not specify the training that must be received or the manner in which it is to be received, other than to state that it may be taken online. For information on the training requirement and for access to training developed by the Office of the Attorney General, see the Attorney General’s Open Government Training Web page.