Transcript What is a “meeting” - Washington State School Directors` Association

Open Public Meetings Act in the Digital Age
Welcome
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in our Q&A session at the end of the webinar.
Speakers
Author and Expert
Heidi Maynard
Director of Policy and Legal
Presenter
Colleen Miller
Director of Leadership Development
Agenda
12:00 p.m. Welcome and introductions
12:03 p.m. Open Public Meetings Act
• Overview of OPMA
• Attending meetings via
audio/video conferencing
• Communicating by text/e-mail
• Using social media
• Penalties for OPMA violations
12:45 p.m. Questions and answers
Of course, a disclaimer
• WSSDA does not provide legal advice.
• You should seek professional counsel before acting
upon any information or comments in this webinar
• No information is to be considered to represent the
position of WSSDA on any specific legal matter.
4
Open Public Meetings Act
(OPMA): A brief review
• Chapter 42.30, RCW Open Public Meetings Act
• Enacted 1971
• Borrows heavily from California law and
Florida’s “Sunshine Law”
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Open Public Meetings Act
(OPMA): A brief review
RCW 42.30.020
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…
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Open Public Meetings Act
(OPMA): A brief review
RCW 42.30.030
“Public agency” means “Any state board, commission,
department, educational institution, o other state agency
which is created by or pursuant to statute, other than the
courts and the legislature.” In other words, school
boards.
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What is a “meeting”
under OPMA?
“Meeting” means a meeting at which action is taken.
RCW 42.30.020
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What is an “action”
under OPMA?
“Action” means the transaction of the official
business of a public agency by a governing body
including but not limited to receipt of public testimony,
deliberations, discussions, considerations, reviews,
evaluations, and final actions.
RCW 42.30.020
9
What is considered a
“final action” under OPMA?
“Final action” means 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.
RCW 42.30.020
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Types of meetings
Regular meetings
• School boards should have policies announcing
date, time and place of regular meetings of the board.
• Must meet at least once per month.
• Agenda is not required, but is good practice. It is a
public record.
• Minutes are required by law. They are also public
records.
• May include executive session.
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Regular meetings
What should minutes include?
• Date, time and place of meeting
• Presiding officer
• Members of the board in attendance
• Items discussed
• Motions made and results of votes on motions
• Any action to adjourn to executive session
with a general statement of purpose
• Time of adjournment.
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Special meetings
• Defined in RCW 42.30.080 as any meeting of the
board that is not a regular meeting or called in an
emergency situation.
• May be called by the board president, chair or a
majority of the board.
• Each member must receive written notice at least 24
hours before the meeting. Media outlets registered
with the district should receive same notice at least
24 hours before the meeting.
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Special meetings
• If the meeting location changes from the central
office, notice must be posted on the website, the door
of the central office and the door of the new location.
• An agenda is required in advance of the meeting.
The board cannot take final action at a special meeting
on any matter not on the original notice and agenda.
Minutes are also required by law.
• Can be held for purposes of holding an
executive session.
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Emergency meetings
• May be called to deal with emergencies involving
injuries to person or property or the likelihood of
injury if the time requirement would increase the
likelihood or severity of injury or damage.
• Fire, flood, earthquake or other emergencies are
grounds for holding a meeting at another time or
site. Notice requirement is suspended.
• Ask: Under the circumstances, is it reasonable to
adhere to notice requirements?
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Closed (exempt) meetings
• No public notice or access is
required for a board to gather for:
− Collective bargaining discussions
− Quasi-judicial hearings (discipline matters involving
students* and staff). Witnesses need to testify may be
present. Person appealing the discipline may choose
to have people present. HOWEVER, the hearing is
closed to the general public.
*FERPA requires that student information in discipline matters remain confidential.
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Is it necessary to hold an
open public meeting?
Board retreat
Meeting with other jurisdiction like a tribal council
Interviews of candidates for Superintendent
Staff retreat
Study session
Taking testimony
School-community forum
Committee meetings
Conducting hearings
Training session
Collective bargaining strategy sessions
Student/staff discipline appeals
YES
YES
YES
YES
YES
YES
LIKELY
LIKELY
LIKELY
NOT LIKELY
NO
NO
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Remember…
Under OPMA, a meeting occurs whenever a
quorum (majority) of board members takes
action. Action is not limited to voting. It includes
deliberation, discussion and consideration.
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The board that likes
to get together
“It shall not be a violation…for a majority of
members of [a board] to travel together…or gather
for purposes other than a regular or special
meeting…PROVIDED that they take no action.”
RCW 42.30.070
So, traveling together, attending church and
social gatherings together are fine, just don’t
talk shop!
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Board packet
Q: Who gets a board packet?
A: Under the Public Records Act, the public can
request the agenda and most of the supporting material.
Some supporting material is exempt for the PRA,
including: identifying student information, private
information about employees, preliminary briefing
documents (which can be kept private until final
decision) etc.
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Board packet
Best practice
If your board packet contains any type of sensitive
information, consult your district counsel prior to
releasing the packet to the public. Note that
response time for a Public Records Request is
5 business days.
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Getting to know you
You can ask for members of the
public to “sign in,” provide personal
information or complete a
questionnaire, BUT, Don’t require it
as a condition of attendance.
RCW 42.30.040
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Be ready for your close-up
Yes. A board may not prohibit
the public (this includes board
members) from taping a
meeting if the taping is done in
a reasonable manner that does
not disrupt the meeting.
Attorney General’s Opinion, 1998 No. 15
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Public comment
• A tradition that serves
the community and school
board well.
• NOT required by law.
• Should enhance, not hinder, the
transaction of the board’s business.
• Boards should be diligent in allowing public
comment on appropriate issues BUT shouldn’t
surrender control of the agenda to the public.
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Everyone’s favorite board
meeting attendee
OPMA only requires (RCW 42.30.030) that the
public can attend a board meeting. OPMA does
not allow the public to become unruly or disruptive
at a meeting.
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You’re outta here!
Four steps to ejection
1. Limit unruly attendee’s speaking time.
2. Instruct the unruly attendee as to rules of courtesy.
3. Remove the unruly attendee’s privilege to speak.
4. Eject the unruly attendee for disorderly conduct by:
− Clearing the meeting room, then continuing the meeting OR
− Adjourning and selecting another location by majority vote
*Final votes may be taken only on matters appearing on the original agenda.
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The hijacked board meeting
In the event a meeting is interrupted by a group or groups of
persons so as to render the orderly conduct of such a meeting
unfeasible and order cannot be restored by the removal of
individuals who are interrupting the meeting, the members of the
[board] …may order the meeting room cleared and continue
in session or may adjourn the meeting and reconvene at
another location selected by majority vote of the members.
Final disposition may be taken only on matters appearing on the
agenda. DON’T FORGET TO LET THE MEDIA BACK IN!
RCW 42.30.050
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What about committees?
OPMA applies to committees of the school
board when the committee “acts on behalf of
the governing body, conducts hearings, or takes
testimony or public comment.”
RCW 42.30.020(2)
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What does “acts on behalf
of a governing body” mean?
Attorney General’s Opinion 1986, No. 16:
“A committee acts on behalf of a governing body when
it exercises actual or de facto decision-making
power… Such a committee is subject to the [OPMA]
whenever it meets to conduct business related to the
exercise of its decision-making power. An advisory
committee is not subject to [OPMA].”
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What does “acts on behalf
of a governing body” mean?
ALSO
Attorney General’s Opinion 2010, No. 9:
If a quorum of a governing body takes action at a committee
meeting by, for example, merely sitting in the audience and
considering the official board business discussed by the
committee or receiving public testimony, it is not sufficient to rely
on the notice for the committee meeting alone. This is a meeting
of the governing body and must be separately noticed.
Best practice: When in doubt, committee meetings should be
open and public and proper notice should be given.
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What about executive sessions?
OPMA allows parts of board meetings to be held without the
public if they are being held to discuss at least one of the
following topics:
1. Matters affecting national security, RCW 42.30.110 (1)(a)
2. Selection of a site or acquisition of real estate if public
knowledge might increase the price, 1(b)
3. Minimum selling price of real estate if public knowledge
might depress the price (BUT: final action selling or leasing
must take place in a public meeting), 1(c)
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What about executive sessions?
4. Negotiations on performance of a publicly bid contract if public
knowledge might increase costs, 1(d)
5. Complaints or charges against an employee or board member
(HOWEVER: the person involved may open the meeting to the
public), 1(f)
6. Qualifications of an applicant for public employment or review of
the performance of public employee (e.g., Superintendent)
BUT, final action must be taken in public and discussion of
salaries and wages and other conditions of employment must
take place in public AND discussions affecting employees
generally must be held in public. (1)(g)
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What about executive sessions?
7. Qualifications of a candidate for appointment to elective office,
BUT interviews and final appointment must be conducted in
public. (1)(h)
8. Discussion with legal counsel regarding enforcement actions,
litigation or potential litigation if public discussion might result in
adverse legal or financial consequence. (1)(i)
9. NEW: Consideration of proprietary or confidential non-published
information related to the development, acquisition or
implementation of state purchased health care services as
provided in RCW 41.05.026. (1)(l)
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Executive session
“statement of purpose”
• The agenda should contain a statement of purpose for the
executive session.
• The statement of purpose should be sufficient to make it
clear that the subject matter fits one of the statutory
exceptions for an executive session.
• Best practice for agenda and/or minutes is to cite the precise
subsection of the statute.
– Example: “Executive session to evaluate the performance
of a public employee, as authorized by RCW 42.30.110
(1)(g) - 8:00 p.m. to 9:00 p.m.
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Remember…
Any records or documents taken
into or made during executive
session may be subject to public
record requests.
36
Virtual attendance
at board meetings
• OPMA does not require physical presence
to attend a meeting.
• Under Robert’s Rules of Order, some or all
members may attend electronically as long as
there is, at a minimum, simultaneous aural
communication between board members.
This is essential to the deliberative character of
a board meeting.
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Best practices for meeting
virtually/electronically
Taking OPMA and Robert’s into account, a board
meeting may be held in which some or all members
attend by phone or videoconference as long as:
• The meeting is properly noticed as to time/date and access codes
or phone numbers required.
• The communication medium is accessible to members of the public
and accommodates any member of the public who wishes to
participate (platform should be made available at the central office).
• The communication medium shouldn’t require specific training or
education to use.
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Best practices for meeting
virtually/electronically
For board members and those providing public
comment, make sure:
• To identify caller(s) and authenticate
them prior to the meeting.
• That caller(s) can hear the rest of the members.
• That caller (s) can be heard by the rest of the
members.
• To stop and repeat if communication is interrupted.
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Wood v. Battle Ground
School District (2001)
• An e-mail exchange by a quorum of board members about
board business is a “meeting” under OPMA.
• Active exchange of e-mails triggers OPMA, mere passive receipt
does not.
• Construes “action” under OPMA as forward looking:
“communication about issues that may or will come before the
board for a vote.”
− HOWEVER: City Council Scenario: It’s conceivable that “debriefings” about
board issues by a quorum after a board meeting/vote could also be “action.”
So a broader definition of action, like “communication about board issues” is
probably a good idea.
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All about email
DO:
• Have one-way communication
from board chair or staff to
board members to distribute
meeting notices, agendas, and
materials or to schedule
meetings.
• Discuss issues unrelated to
board business, such as a
social event.
DON’T:
• Engage a quorum of board
members in an exchange
about official board business .
This is a meeting that should
be open to the public. Wood v.
Battle Ground School Dist.,
107 Wash.App. 550, 27 P3d
1208 (2001).
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Practices that can
lead to OPMA violations
“REPLY ALL”
Don’t do it. Just don’t.
Daisy chains
Information passed from one
board member to another in
order to avoid triggering the
quorum requirement of OPMA.
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Practices that can
lead to OPMA violations
“Two by two”
aka: “Noah’s Ark”
communication
Telephone/e-mail trees
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Practices that can
lead to OPMA violations
Using staff as a “hub” to conduct
collective decisions/action.
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Personal communication
Using personal email or a personal communication device
to conduct board business is risky.
• Any e-mail account that contains e-mails about board
business and any device holding text messages about
board business is subject to public records request.
• If personal e-mails/texts are mixed in, they may be
subject to exemption from disclosure but will need to be
redacted at great expense to the district.
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Best practices for
board members
• Use a separate e-mail account and device (district issued, if
possible) for all board business
• If a constituent or any other member of the public contacts you at
your personal e-mail address about board business, an
appropriate response would be:
Dear Constituent:
I do not respond to e-mails/texts to my personal account.
Please contact me at ________.
Sincerely,
Patty McPrivacy, Board President”
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Boards and social media
OPMA doesn’t address social media like Facebook,
Twitter, Pinterest or Instagram.
HOWEVER, the case law on e-mail exchanges suggests
that the same guidelines would apply to social media.
When a quorum of board members engages in
discussion on any social media platform about board
business, it’s a meeting.
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Twitter and Facebook
If your board or district wants its own social media page or
feed, remember:
• The PRA considers electronic records or posts created
or received in the transaction of public business to be
public records.
• Electronic records and posts must be identified, filed and
retained just like records in other formats, according to
the State Archivist’s Records Management Guidelines
and General Records Retention Schedules.
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Twitter and Facebook
• Remember that in the case of a public records
request for such records, you will need to look at your
service contract with vendors and social media site
operators. Ask: Does the contract provide you
sufficient control to ensure the posts are retained for
the full retention period?
• Best practice: Use available applications to capture
social media records or, at the very least, take screen
shots and only repost material on social media that
has been posted on your website.
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Sending texts and emails
during board meetings
Board members, like the rest of the general public, use Smartphones
and tablets during meetings. That’s fine, EXCEPT when:
• Texts and/or e-mails occur between a quorum of board members
about official board business. This is a meeting within a meeting in
violation of OPMA.
OR
• Texts an/or e-mails are used to conduct a secret poll or vote
(prohibited by RCW 42.30.060).
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Other considerations
• Attentiveness to the actual board
proceedings is diminished
• Persons making public comments perceive
board members are ignoring them
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Remember
• Board member text messages
and e-mails about board
business are subject to public
records request.
• Once request for them is made,
don’t delete/destroy!
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The cause of action
Anyone can sue for an OPMA violation by filing for a
writ of mandamus (court order requiring a governing
body to do or refrain from an act they are obliged
under law to do or to refrain from doing) or injunction
to stop or prevent threatened violations.
RCW 42.30.130
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The cause of action
Party bringing the action must prove:
1. That a member of a governing body
2. Attended a meeting of that body
3. Where action was taken in violation of OPMA and
4. The member had knowledge that the meeting violated
OPMA.
RCW 42.30.060: Any action taken as to adoption of any
ordinance, resolution, rule, regulation, order or directive except
in a meeting open to the public is NULL and VOID.
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Penalties for violating OPMA
• A violation of OPMA is a civil offense.
• Each member of the governing body who attends
a meeting where action is taken in violation OPMA
with knowledge of the fact…shall be subject to
personal liability in the form of a civil penalty of
$100 (RCW 42.30.120)
• Can be used as grounds for recall.
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Loser pays (sort of)…
• A person who prevails against a public agency
for a violation of OPMA will be awarded all
costs, including reasonable attorney’s fees
incurred with legal action.
• Any public agency who prevails be awarded
reasonable expenses and attorney fees if the
trial judge finds the action was “frivolous and
advanced without reasonable cause.”
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What can board members
do if they become aware
they’ve violated OPMA?
• Remedy the situation as soon as possible (preferably at the
next board meeting) by announcing the action not conducted in
an open public meeting and by taking the action again in the
open meeting.
• Case law suggests that prompt action along these
lines might be viewed in the board’s favor in a suit
alleging an OPMA violation:
− Eugster v. City of Spokane, 110 Wn. App. 212, 39 P.3d 380 (2002)
− Henry v. Town of Oakville, 30 Wn. App. 240, 633 P.2d 892(1981)
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Questions and answers
“I would trade all my technology
for an afternoon with Socrates.”
Steve Jobs, Newsweek, 2001
Thank you for attending!
A recording of this event will be available
on our website within a week.
www.wssda.org