AGO 1971 No. 37 - Nov 29 1971
TAXATION ‑- PROPERTY ‑- COUNTIES ‑- MEETINGS ‑- PUBLIC ‑- ATTENDANCE BY PUBLIC AT SESSIONS OF A COUNTY BOARD OF EQUALIZATION
RCW 84.48.010, in requiring county boards of equalization convened pursuant thereto to meet in open session, requires that all sessions of a county board of equalization which have been convened pursuant to this statute be open to attendance by the public except where the county assessor proposes to offer in evidence information which he has obtained under RCW 84.48.340; where such evidence is offered, the board's session must be closed to the public unless the taxpayer against whom the evidence is offered accedes to the opening of the session to the public, and thereby waives his right to confidentiality.
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November 29, 1971
Honorable Leonard A. Sawyer
State Representative, 25th District
Route 3, Box 1990
Sumner, Washington 98390
Cite as: AGO 1971 No. 37
By letter previously acknowledged you have requested our opinion on a question which we paraphrase as follows:
Must all sessions of a county board of equalization which have been convened pursuant to the provisions of RCW 84.48.010 be open to attendance by the public?
We answer this question in the affirmative subject to a single qualification appearing in our analysis.
County boards of equalization are tribunals formed under the provisions of chapter 84.48 RCW for the purpose of fixing property values, correcting errors in the assessment rolls, and equalizing the assessment of property for ad valorem tax purposes. The primary statute relating to [[Orig. Op. Page 2]] the sessions of such boards is RCW 84.48.010, which provides, in pertinent part, as follows:
"Prior to July 1st, the county commissioners shall form a board for the equalization of the assessment of the property of the county. . . . The board of equalization shall meet in open session for this purpose annually on the first Monday in July and, having each taken an oath fairly and impartially to perform their duties as members of such board, they shall examine and compare the returns of the assessment of the property of the county and proceed to equalize the same, so that each tract or lot of real property and each article or class of personal property shall be entered on the assessment list at its true and fair value, according to the measure of value used by the county assessor in such assessment year, . . .
". . .
"The clerk of the board shall keep an accurate journal or record of the proceedings and orders of said board in a book kept for that purpose, showing the facts and evidence upon which their action is based, and the said record shall be published the same as other proceedings of county commissioners, and shall make a true record of the changes of the descriptions and assessed values ordered by the county board of equalization. . . .
"The county board of equalization shall meet on the first Monday in July and may continue in session and adjourn from time to time during a period not to exceed four weeks, but shall remain in session not less than three days: . . ."
In addition to their July sessions, county boards of equalization are required to reconvene on the 1st Monday in August for the limited purpose specified in § 8, chapter 288, Laws [[Orig. Op. Page 3]] of 1971, 1st Ex. Sess. They are also required to convene on the 3rd Monday in November, as provided for in RCW 84.52.090, for the sole purpose of correcting specified errors appearing on an assessment roll; and, finally, these boards are required by RCW 84.56.390-84.56.400 again to reconvene during June of the ensuing year for final correction of errors or omissions in the assessment roll. However, the phrase "open session" appears only in RCW 84.48.010, and, as we understand it, your question is limited to those sessions of a board of equalization which are convened pursuant to this statute.
Before proceeding to consider the meaning of "open session" as used in RCW 84.48.010, we should first dispose of a peripheral issue which is raised by your request; namely whether, irrespective of the interpretaion to be applied to this statute, the various "meetings" of a county board of equalization are in any event required to be "open to the public" under the general provisions of chapter 250, Laws of 1971, 1st Ex. Sess., commonly known as the "open public meetings act of 1971." We answer this question in the negative by reason of the following specific exemption which is contained in § 14 of this 1971 enactment:
". . . PROVIDED, That this act shall not apply to:
". . .
"(2) that portion of a meeting of a quasi-judicial body which relates to a quasi-judicial matter between named parties as distinguished from a matter having general effect on the public or on a class or group; . . ."
For the proposition that county boards of equalization are quasi-judicial bodies, see,Northwest Improvement Co. v. McNeil, 100 Wash. 22, 170 Pac. 338 (1918). Moreover, it seems clear that when acting to determine whether a county assessor's valuation of certain property ‑ as opposed to that valuation urged by the taxpayer ‑ is correct, the board is acting on ". . . a quasi-judicial matter between named parties . . .". Accord, AGO 1971 No. 33 [[to King Lysen, State Representative on October 29, 1971]], copy enclosed.
We turn, then, to the critical issue raised by your request ‑ noting, in so doing, that the phrase "open session" appearing in RCW 84.48.010 also is to be found in WAC 458-14-075, [[Orig. Op. Page 4]] which is an administrative regulation promulgated by the state department of revenue for the operation of county boards of equalization.
Generally, the word "session," when used by itself, means the time period during which a tribunal is assembled and engaged in the transaction of its official business. See,Ralls v. Wyand, 40 Okla. 323, 138 Pac. 158 (1914); 79 C.J.S., Session or Sessions, page 1145. Thus, as used in RCW 84.48.010 the word "session" must refer to the space of time constituting the life of a July board of equalization. To paraphrase the statute, this board of equalization is to convene each year on the 1st Monday in July for a session or term which shall not extend beyond four weeks. During that session the board may periodically recess or suspend operations but it must be available for the transaction of business on not less than three days during this four-week period.1
What, then, does the adjective "open" add to this proposition? In considering this question we note, first, the distinction which was recognized by the supreme court of Indiana in Stefani v. The State, 124 Ind. 3, 24 N.E. 254 (1889), wherein the court, in considering the meaning of a statute which used the term "session" without modification, said:
". . . The word 'session,' as employed in section 1679 of the statute, does not mean that the court must be actually open for the transaction of business; the statute does not say 'open session.'
"The word is used as meaning the same thing as the word 'term,' when applied to the sitting of a court.
"Worcester gives the following definition: 'The time or term during which a court, a legislative body, or other assembly, sit, with no other interval than short intermissions, or daily adjournments; the time between the first meeting of an assembly and its prorogation, or final adjournment; as, "a session of Congress."' Webster gives substantially the same definition."
[[Orig. Op. Page 5]] It is, of course, a well-established rule of statutory construction that every word or phrase used in a statute must be given meaning or effect if it is possible to do so. See, e.g.,Murray v. Dept. of Labor & Industries, 151 Wash. 95, 275 Pac. 66 (1929). Another rule to be noted is that words used in a statute are to be given their common and ordinary meaning in the absence of anything in context to the contrary. Featherstone v. Dessert, 173 Wash. 264, 22 P.2d 1050 (1933).
As defined in Webster's Third New International Dictionary (1961), the word "open" is defined in terms of availability and accessibility. Thus, at all times during its July session, a board of equalization must be available and accessible ‑ but to whom? Only to such individual taxpayers as have matters pending before the board on a particular day, or to all orderly persons who wish to attend its sessions as spectators?
We note that the somewhat analogous term "open court," as defined in Black's Law Dictionary, 4th ed., at page 1242, may describe either of these two degrees of openness; i.e.,
"This term may mean either a court which has been formally convened and declared open for the transaction of its proper judicial business, or a court which is freely open to the approach of all decent and orderly persons in the character of spectators. Conover v. Bird, 56 N.J. Law, 228, 28 A. 428 [[28 Atl. 428]]. Gomes v. Ulibarri, 23 N.M. 501, 169 P. 301, 302; U.S. v. Ginsberg, 243 U.S. 472, 37 S.Ct. 422, 425, 61 L.Ed. 853; Gillham v. St. Louis Southwestern Ry. Co. of Texas, Tex. Civ. App., 241 S.W. 512, 514."
However, there is one notable difference between "open session" and "open court." As we have already discerned, the word "session" by itself denotes an existence of the formal capacity of a subject tribunal to conduct its official business.
Thus, to give proper meaning to the adjective "open," consistent with the foregoing mandates of statutory construction, we believe that it is necessary to conclude that the [[Orig. Op. Page 6]] term "open session" as used in RCW 84.48.010 denotes not merely an existence of capacity on the part of a board of equalization to conduct business but as well, and "openness" ‑ in terms of a general availability and accessibility to all orderly persons who wish to attend its sessions as spectators.
Thus, in general terms, we answer your question (as paraphrased) in the affirmative. However, in so concluding we must call your attention to RCW 84.40.340, which provides:
"For the purpose of verifying any list, statement, or schedule required to be furnished to the assessor by any taxpayer, any assessor or his trained and qualified deputy at any reasonable time may visit, investigate and examine any personal property, and for this purpose the records, accounts and inventories also shall be subject to any such visitation, investigation and examination which shall aid in determining the amount and valuation of such property. Such powers and duties may be performed at any office of the taxpayer in this state, and the taxpayer shall furnish or make available all such information pertaining to property in this state to the assessor although the records may be maintained at any office outside this state.
"Any information or facts obtained pursuant to this section shall be used only for the purpose of determining the assessed valuation of the taxpayer's property andexcept in a court action pertaining to penalties imposed pursuant to RCW 84.40.130, or to the assessment or valuation for tax purposes of the property to which such information and facts relate, shall not be disclosed without the permission of the taxpayer to any person other than public officers or employees whose duties relate to valuation of property for tax purposes, and any violation of this secrecy provision shall constitute a gross misdemeanor." (Emphasis supplied.)
[[Orig. Op. Page 7]] This statute creates a confidentiality regarding certain information which can only be disclosed with the permission of the subject taxpayer or upon the commencement of a court proceeding. In order to protect this statutory confidentiality, RCW 84.40.340 must be read in conjunction with RCW 84.48.010. From this it follows, in our opinion, that if, during an "open session" of the board under RCW 84.48.010, the county assessor proposes to offer in evidence information which he has obtained under RCW 84.40.340, the board's session at this point must be closed to the public unless the taxpayer against whom the evidence is offered consents to the session remaining open to the public ‑ and thereby waives his right to confidentiality.
We trust that the foregoing will be of some assistance to you.
Very truly yours,
EDWARD B. MACKIE
Deputy Attorney General
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1/See, also, WAC 458-14-075.