AGO 2017 No. 4 - Mar 21 2017
COMMISSION ON SALARY FOR ELECTED OFFICIALS—OPEN PUBLIC MEETINGS ACT—Legislative Authority To Combine The Commission On Salaries For Elected Officials With Another Agency, And Of Commission To Hold Regular Meetings By Telephone Conference Call
- The legislature could combine the Commission on Salaries for Elected Officials with another agency if in doing so it did not impede the Commission’s independence in fixing the salaries of elected officials.
- The Commission on Salaries for Elected Officials may conduct properly-noticed meetings telephonically in compliance with the Open Public Meetings Act if the conference call is broadcast over a speaker phone or similar technology at a set location where the public can attend and listen to the proceedings without difficulty, and if the technology allows the public to testify regarding the proposed salary schedule.
March 21, 2017
Dear Director Wright:
By letter previously acknowledged, you have requested our opinion on the following questions, which we paraphrased as follows:
- Can the Washington Citizens’ Commission on Salaries for Elected Officials be legally combined with another agency and, if so, what are the requirements needed to accomplish such a combination?
- Can the Commission hold regular meetings, for the purpose of taking public testimony on the proposed salary schedule, exclusively by telephone conference call?
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- Yes. The legislature could lawfully combine the Commission with another state agency through legislation that does not impede the Commission’s constitutional duty to independently fix the salaries of elected officials. Legislation accomplishing such a combination would need to be tailored to avoid impairment to the Commission’s ability to independently fix the salaries of those elected officials covered by article XXVIII of the Washington Constitution.
- Yes. The Open Public Meetings Act of 1971 (OPMA) states that the public “shall be permitted to attend any meeting of the governing body of a public agency” except as otherwise provided by the OPMA. RCW 42.30.030. The scenario you describe would constitute a meeting of the governing body of the Commission and therefore would be subject to the OPMA. In our view, the Commission could lawfully conduct its regular meetings by properly-noticed telephone conference call if the conference call is broadcast over a speakerphone or similar technology at a set location where the public can attend and listen to the proceedings without difficulty, and that technology permits the public to testify regarding the proposed salary schedule.
The Washington Citizens’ Commission on Salaries for Elected Officials was created by statute in 1986 in anticipation of a proposed amendment to article XXVIII of the Washington Constitution that would require the salaries for members of the legislature, elected officials of the executive branch, and state court judges to be “fixed by an independent commission created and directed by law to that purpose.” Substitute H. J. Resolution 49, 49th Leg., Reg. Sess. (Wash. 1986) (see page 1529); see also Laws of 1986, ch. 155 (creating Commission). Before the Commission was created, salaries for elected state officials were fixed by the legislature. Former Const. art. XXVIII, § 1. The purpose for the constitutional amendment “was to give an independent citizens’ commission, rather than the Legislature, the authority to set salaries for elected officials.” AGO 2003 No. 2, at 2 (citing Voters & Candidates Pamphlet 12 (1986)). The voters approved the amendment to article XXVIII. Const. art. XXVIII, § 1 (amend. 78).
The Commission was initially made up of 15 citizen members comprising one registered voter selected by lot from each of the then-existing federal congressional districts in the state (eight total), and the remaining seven selected for appointment by the President of the Senate and the Speaker of the House among qualified residents of the state with experience in the field of personnel management. Laws of 1986, ch. 155, § 2. A sixteenth committee position was added in 1995 to represent the ninth congressional district that had been created after the 1990 U.S. census, and a seventeenth position was added in 2011 to represent the tenth congressional district created after the 2010 census. Laws of 1995, ch. 3, § 1; Laws of 2011, ch. 254, § 1. Members are appointed for four-year terms. RCW 43.03.305(3). No person may be appointed to more than two terms. RCW 43.03.305(4).
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The purpose, duties, and responsibilities of the Commission are set out in RCW 43.03.300 through .310. The Commission is “solely responsible” for its own organization and operation except as otherwise limited by RCW 43.03.305 and .310. RCW 43.03.310(2). Statutory limitations placed on the Commission with respect to its organization and operations include:
- The Commission shall set the schedule of salaries of elected officials by an affirmative vote of not less than nine members. RCW 43.03.310(4).
- The Commission must file a certified schedule of salaries of elected officials with the secretary of state within the deadline, and in the manner, specified in RCW 43.03.310(5). The certified schedule must be filed biennially on or before the first Monday in June.
- Before filing the certified schedule of salaries with the secretary of state, the Commission must develop a proposed salary schedule and must “hold no fewer than four regular meetings as defined by chapter 42.30 RCW to take public testimony on the proposed schedule within the four months immediately preceding the filing.” RCW 43.03.310(6).
- At the last public hearing pertaining to the proposed schedule of salaries, the Commission must “adopt the salary schedule as originally proposed or as amended at that [last] meeting that will be filed with the secretary of state.” RCW 43.03.310(6).
- All meetings and other business of the Commission are “subject in full” to the state’s Open Public Meetings Act. RCW 43.03.310(7).
1. Can the Commission be legally combined with another agency and, if so, what are the requirements needed to accomplish such a combination?
Under current law, the Commission is “solely responsible for its own organization, operation, and action[.]” RCW 43.03.310(2). A statutory amendment would therefore be required to change the existing legislation and combine the Commission with another agency. The question therefore becomes whether the legislature could amend RCW 43.03.310 to combine the Commission with another state agency, consistent with article XXVIII of the Washington Constitution.
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As a general matter, the legislature has the authority to pass laws consolidating, combining, or merging, in whole or in part, two or more state agencies. Any limit to this power must come from the state or federal constitutions. Washington State Farm Bureau Fed’n v. Gregoire, 162 Wn.2d 284, 300-01, 174 P.3d 1142 (2007); State ex rel. Citizens Against Tolls v. Murphy, 151 Wn.2d 226, 248, 88 P.3d 375 (2004).
To answer whether the legislature could combine the Commission with another agency we examine the language of article XXVIII. In reviewing that provision, we give the words used therein “their common and ordinary meaning, as determined at the time they were drafted.” League of Educ. Voters v. State, 176 Wn.2d 808, 821, 295 P.3d 743 (2013) (quoting Washington Water Jet Workers Ass’n v. Yarbrough, 151 Wn.2d 470, 477, 90 P.3d 42 (2004)); see also Zachman v. Whirlpool Fin. Corp., 123 Wn.2d 667, 670, 869 P.2d 1078 (1994) (when construing constitutional language, “words are given their ordinary meaning unless otherwise defined”).
Article XXVIII, section 1 of the Washington Constitution provides, in part, that “[s]alaries for members of the legislature, elected officials of the executive branch of state government, and judges of the [state] courts shall be fixed by an independent commission created and directed by law to that purpose.” The provision goes on to state that once the independent commission is created by the legislature, “no amendment to such act which alters the composition of the commission shall be valid unless the amendment is enacted by a favorable vote of two-thirds of the members elected to each house of the legislature and is subject to referendum petition.” Const. art. XXVIII, § 1.
The language reveals two limits on the power of the legislature as it pertains to the functions and composition of the Commission. First, the responsibility of establishing salaries of covered state officials must remain the function of an “independent commission.” Second, any modification to the “composition” of the independent commission requires a two-thirds vote of each house of the legislature, and is subject to a referendum vote of the Washington electorate. Neither limit expressly prohibits the Commission from being combined with another state agency nor can a prohibition be fairly inferred from the constitutional language.
As noted above, words used in a constitutional provision should be given their common and ordinary meaning. League of Educ. Voters, 176 Wn.2d at 821. When the ordinary meaning of a term is not readily apparent, “it is appropriate to refer to the dictionary.” Zachman, 123 Wn.2d at 671. Moreover, courts may consider the context and history of the constitutional language, with the ultimate goal of giving effect “to the manifest purpose for which the constitutional provision was adopted.” Id.
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Applying these general principles of construction, the term “independent commission” as used in article XXVIII means an organized group of persons directed to perform a duty, which is not subject to the control of others with respect to that duty. See Webster’s Third New International Dictionary 1148 (2002) (defining “independent” to include “not subject to control by others : not subordinate : self-governing”); Webster’s at 457 (defining “commission” to include “a group of persons directed to perform some duty or execute some trust”). In article XXVIII, this term delineates who is responsible for fixing the salaries of covered state officials. Moreover, the express purpose of the 1986 amendment to article XXVIII “was to give an independent citizens’ commission, rather than the Legislature, the authority to set salaries for elected officials.” AGO 2003 No. 2, at 1-2 (emphasis added) (citing Voters & Candidates Pamphlet 12 (1986)). Thus, when read in context and in light of its manifest purpose, article XXVIII of the state constitution limits the function of fixing salaries of specified officials to a commission “created and directed by law to that purpose.” Const. art. XXVIII, § 1.
The Commission could be legislatively combined with another state agency so long as it does not impede or otherwise adversely impact the independence of the Commission in setting salaries (or change its composition without the constitutionally required supermajority). However, any law that combines the Commission with another agency could be subject to a constitutional challenge if it impedes the ability of the Commission to act independently in setting salaries, or reconfigures the composition of the Commission without a two-thirds majority vote of the legislature.
In a follow-up email to our office sent on September 7, 2016, you noted that the Commission sets the salary for the governor and asked whether this might preclude the Commission from being combined with an agency that the governor “has power over[.]” Administrative agencies of this state fall within the executive branch of government. Moreover, the governor is responsible for appointing the heads of most state agencies, although the Senate is often given power to confirm or reject the appointment. Consequently, the governor undoubtedly has significant power with respect to the appointment of agency heads and likely could exert influence regarding core agency objectives. But that power to appoint agency heads and potential influence over agency objectives is not an insurmountable barrier that prevents the legislature from combining the Commission with another state agency. The key questions would be whether the specific legislation preserves the independence of the salary commission from the agency head or agency. And, of course, composition of the commission cannot be altered absent a legislative supermajority.
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Given that there is no specific proposal to combine the Commission with another agency, we are unable to provide a more detailed analysis regarding your first question. We can only say that as a general matter, article XXVIII of the Washington Constitution does not categorically prevent the legislature from combining the Commission with another state agency if the legislature guarantees the “independent” function of the Commission with respect to setting salaries as envisioned by the constitution, and does not change the composition of the Commission without a two-thirds majority vote.
Finally, we have also considered your question in the context of having the Commission staffed by employees of another state agency as opposed to having the Commission combined with that agency. There are occasions where an otherwise fully independent board or commission is staffed by another agency or another department of state government. For example, the Executive Ethics Board is staffed by the Office of the Attorney General even though the Board is independent of our office. RCW 42.52.350(8). Similarly, the Department of Commerce provides staff support to the 13-member Public Works Board. RCW 43.155.030(3).
By statute, the Commission is “solely responsible” for its own organization and operations except as provided in RCW 43.03.305 and .310. RCW 43.03.310(2). Neither RCW 43.03.305 nor .310 discuss Commission staffing. Consequently, the Commission is authorized to make its own staffing decisions, subject to practical constraints pertaining to its operating budget. Pursuant to this authority, the Commission has hired an executive director and has delegated other staffing responsibilities to that executive director, in “consultation with the chair” of the Commission. WAC 183-11-010(4).
Thus, under current law, the Commission is staffed by its own employees, not by employees of another state agency. However, consistent with our discussion above, the legislature could amend the law to expressly direct how the Commission is staffed. In our view, a statutory amendment directing that the Commission is to be staffed by another agency or department of state government would be constitutional so long as it does not impede or otherwise adversely impact the independence of the Commission in setting salaries.
2. Can the Commission hold regular meetings, for the purpose of taking public testimony on the proposed salary schedule, exclusively by telephone conference call?
As you note in your request letter, the Commission is required to hold periodic public meetings to elicit public testimony regarding proposed salaries of covered state officials. Specifically, RCW 43.03.310(6) requires the Commission to develop a proposed salary schedule and to “hold no fewer than four regular meetings . . . to take public testimony on the proposed schedule within the four months immediately preceding the filing” of the final, certified, schedule with the secretary of state. Your second question asks whether these regular meeting
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can be held exclusively by telephone conference call and requires application of the state Open Public Meetings Act.
RCW 42.30.030 establishes the core OPMA requirements: “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.” A “meeting” in the context of the OPMA means a gathering of a majority of the governing body “to discuss or act on matters in which [the attendees] have a common interest.” Citizens All. for Prop. Rights Legal Fund v. San Juan County, 184 Wn.2d 428, 443, 359 P.3d 753 (2015) (quoting Black’s Law Dictionary 1131 (10th ed. 2014)).
For a “meeting” to occur within the meaning of the OPMA, “action” must be taken by a quorum of the governing body. RCW 42.30.020(4); Citizens All., 184 Wn.2d at 442-43. The term “action” is broadly defined in the Act as “the transaction of the official business of [the] public agency by [its] governing body including . . . receipt of public testimony, deliberations, discussions, considerations, reviews, evaluations, and final actions.” RCW 42.30.020(3). “Thus, within the context of the OPMA . . . a ‘meeting’ of a governing body occurs when a majority of its members gathers with the collective intent of transacting the governing body’s business[.]” Citizens All., 184 Wn.2d at 444. However, the mere passive receipt of electronic communication by a member of the governing body does not constitute participation in a meeting by that member. Id.
A meeting where action is taken by the governing body can be held through electronic communication. Wood v. Battle Ground Sch. Dist., 107 Wn. App. 550, 564, 27 P.3d 1208 (2001). Physical presence of a majority of the governing body at an “in-person” gathering is not required to trigger the requirements of the OPMA. Id. at 562-63. In Wood, the Court of Appeals recognized that “[e]lected officials no longer conduct the public’s business solely at in-person meetings. Further, a definition of ‘meeting’ that would require the physical presence of members in the same location would contravene the [Act’s] clear purpose.” Id. at 562 (citation omitted); see also Sunshine Laws 2016: An Open Government Resource Manual 55, /open-government-internet-manual (last visited Mar. 8, 2017) (recognizing that members may attend meetings telephonically or through video conferencing technology). As the Illinois Court of Appeals similarly pointed out over 20 years ago, “with the
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[telecommunications] technology presently available, a group of persons may come together by ‘non-corporal’ means as well.” Freedom Oil Co. v. Illinois Pollution Control Bd., 275 Ill. App. 3d 508, 515, 655 N.E.2d 1184, 211 Ill. Dec. 801 (1995) (quoting Op. Att’y Gen. 82-041, at 9 (Ill. 1982)).
Applying the above analysis, a Commission meeting can be held exclusively via a telephone conference call among a quorum of the Commission members who have a collective intent to take action concerning agency business. To avoid violating the OPMA, such a meeting must be open to the public. In particular, RCW 42.30.030 provides, in part, that “all persons shall be permitted to attend any meeting of the governing body . . . except as otherwise provided in this chapter.” (Emphasis added.)
To comply with this OPMA requirement, a state agency that holds regular meetings “shall file with the code reviser a schedule of the time and place of such meetings on or before January of each year for publication in the Washington state register.” RCW 42.30.075 (emphasis added). The public agency is not permitted to impose any conditions on the right of a person to attend a meeting of its governing body. RCW 42.30.040. In short, as these provisions attest, one of the core OPMA requirements is the opportunity for the public to “attend” open meetings of the governing body.
The term “attend” is not defined in the OPMA and arguably could have varying meanings depending on context. “Absent a statutory definition, words of a statute must be accorded their usual and ordinary meaning.” Pac. First Fed. Sav. & Loan Ass’n v. State, 92 Wn.2d 402, 409, 598 P.2d 387 (1979). In the context used here, “attend” means “to be present at.” See Webster’s at 140 (definition of “attend” includes “to be present at : go to”). Thus, we conclude that permitting “all persons . . . to attend” a meeting of the Commission requires the meeting to occur at a physical location where interested persons can be present to listen to and observe the governing body’s actions. This reading is consistent with the purpose of the OPMA “to permit the public to observe the steps employed to reach a governmental decision.” West v. Washington Ass’n of County Officials, 162 Wn. App. 120, 131, 252 P.3d 406 (2011) (citing Eugster v. City of Spokane, 128 Wn. App. 1, 7, 114 P.3d 1200 (2005)).
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Several states have specifically addressed whether the use of a speakerphone or similar telecommunications technology is permissible under their open meetings laws. See Tuzeer v. YIM, LLC, 29 A.3d 1019, 1033-34 (Md. Ct. Spec. App. 2011) (listing state statutes). For example, California’s open meeting statute permits public meetings by teleconference as long as certain conditions are met, including having “[a]t least one member of the state body . . . physically present at the location specified in the notice of the meeting.” Cal. Gov’t Code § 11123(b)(1)(F). Similarly, New York’s open public meetings law permits public meetings by video conferencing as long as the public is provided an opportunity to attend and observe “at any site at which a member participates.” N.Y. Pub. Off. Law § 103(c).
In contrast to these states, Washington’s OPMA does not expressly address public meetings using telecommunications technology, and thus provides no express guidance regarding such meetings. However, the lack of specific language does not mean that the procedure is prohibited. This is so because the OPMA is a limitation on the authority of a public agency to act, not a grant of authority. Cf. AGO 2014 No. 7, at 4 (concluding that a joint meeting of two county legislative authorities using video conferencing technology was permissible in part because no law prohibited video conferencing and the joint meeting was otherwise within the lawful authority of the county legislative authorities). Thus, the power to hold the meeting using teleconferencing exists so long as the meeting satisfies the limits of the OPMA.
As described above, the OPMA requires that open public meetings comply with notice requirements for both regular and special meetings. RCW 42.30.070, .075, .080. In addition, the OPMA specifies that “all persons shall be permitted to attend” open meetings. RCW 42.30.030. Finally, while the OPMA does not compel agencies to permit public participation at an open meeting, RCW 43.03.310(6) does require the Commission “to take public testimony” regarding its proposed salary schedule.
A regular meeting of the Commission where each member participates by telephone can comply with the requirements of both the OPMA and RCW 43.03.310(6). For example, one or more specific locations can be designated as the meeting place; notification of the meeting place(s) and time can be provided in the manner outlined in RCW 42.30.075; the agenda can be posted online if required by RCW 42.30.077; and a speaker phone can be provided at the designated meeting place(s) to enable those attending to hear the public discussions and to provide testimony. If these steps are taken, those members of the public present at the designated meeting location(s) can hear all discussions, provide testimony, and generally observe the steps employed by the Commission in taking its official action. This process satisfies the requirements of both the OPMA and RCW 43.03.310(6). Accord Tuzeer, 29 A.3d at 1035 (Maryland’s open meetings act construed to allow remote participation by telephone conference call as long as the call is audible to members of the public); Goode v. Dep’t of Soc. Servs., 143 Mich. App. 756, 759-60, 373 NW.2d 210 (1985) (an adjudicative hearing subject to the Michigan open meetings act could be held by teleconference calls without violating that act).
Our opinion on this issue is not without risk. RCW 42.30.060 provides that actions taken by a governing body are “null and void” unless the meeting is open to the public and proper
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notice has been given. Additionally, a member of the public could conceivably bring legal action under RCW 42.30.120 to enforce civil penalties against Commission members for an alleged violation of the OPMA’s requirements. See, e.g., West v. Seattle Port Comm’n, 194 Wn. App. 821, 826, 380 P.3d 82 (2016) (OPMA authorizes “any person” to “bring an action to enforce civil penalties against members of a governing body who attend meetings in violation of the OPMA”). Such a result is unlikely for the reasons stated above, but we cannot entirely discount it. Clarifying legislation could address the subject and eliminate this risk. As mentioned above, several states have addressed by statute the parameters governing public meetings using teleconference and video conference technologies.
We trust that the foregoing will be useful to you.
ROBERT W. FERGUSON
Assistant Attorney General
 For example, in 2011 the legislature created the state Department of Enterprise Services by combining the Department of General Administration and the Office of Public Printer and moving to this new agency certain functions that had been the responsibility of the Office of Financial Management, the Department of Personnel, and the Department of Information Services. Laws of 2011, 1st Sp. Sess., ch. 43, § 103.
 We note that another definition of “independent” focuses on whether the entity is “not affiliated with or integrated into a larger controlling unit[.]” Webster’s at 1148. If the Commission was organizationally or administratively combined with another agency it would, of course, be integrated into or affiliated with that other agency. Considering this definition does not change our analysis, however, because the key question is whether the other agency is “a larger controlling unit” such that the Commission’s independence in setting salaries would be compromised.
 The provisions of the OPMA expressly apply to the Commission. See RCW 43.03.310(7) (“All meetings, actions, hearings, and business of the commission shall be subject in full to the open public meetings act, chapter 42.30 RCW.”); WAC 183-07-010 (“The commission conducts its meetings in compliance with the Open Public Meetings Act, chapter 42.30 RCW.”).
 For further discussion of telephonic or other technology, see the Washington State Bar Association’s Public Records Act Deskbook: Washington’s Public Disclosure and Open Public Meetings Laws (2d ed. 2014) (providing that because physical presence is not required at a meeting, members can attend by telephone), and, OPMA materials of the Municipal Research and Services Center, such as Remote/Video Attendance at Meetings (Jan. 10, 2013), http://mrsc.org/Home/Stay-Informed/MRSC-Insight/January-2013/Remote-Vide... (meetings via video conferencing technology such as Skype can comply with the OPMA, so long as the audio and video components are visible and audible to the public in attendance), and The Open Public Meetings Act: How it Applies to Washington Cities, Counties, and Special Purpose Districts (2016), http://mrsc.org/getmedia/275e74fc-9d43-4868-8987-a626ad2cea9f/open-publi... (OPMA-compliant meetings can be held with one or more members attending by telephone if that member’s voice can be heard by all present, including by the public, and if the member could hear what is stated in the meeting).
 Correspondingly, in a case that did not involve the OPMA but did involve the actions of a quasi-judicial public agency, the Washington Court of Appeals noted that “[i]n this modern technological era, there are many expedient methods to conduct business” including video conferencing, internet conferencing, and telephone conference calls. Clausing v. State, 90 Wn. App. 863, 874 n.6, 955 P.2d 394 (1998). “These methods allow persons to be ‘present’ to one another without the demands often required to achieve physical presence.” Id.