Transcript By Donald F. Austin

THE OPEN PUBLIC
MEETINGS ACT
BY DONALD F. AUSTIN
PATTERSON BUCHANAN FOBES & LEITCH, INC., P.S.
1
The OPMA Returns Sovereignty to the People
“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.” RCW 42.30.010.
2
What is the OPMA?
The basic requirement of the OPMA is that “[a]ll 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.” RCW 42.30.030.
3
What is a Governing Body?
 Any multi-member rulemaking body.
 Includes any board, commission, council, or committee
that conducts hearings or takes testimony. RCW
42.30.020(2).
4
Ordinary Meetings
 A meeting occurs anytime there is a transaction of
official business. RCW 42.030.020(4).
 Rigorously adhere to schedule.
 Notice requirement for ordinary meetings. Must
identify:



Date
Time
Place
5
Agendas
 While there is no legal requirement for an agenda at
a meeting, it is good practice. (But see BP 1420 for
school districts, ordinances for cities, etc.)
 If the board creates an agenda, the public may access
it under the Public Records Act.
 Members of the public do not have a right to place
matters on the agenda.
6
Minutes
 The agency is responsible for taking minutes and making
them available upon request.
 The minutes must include:









Date
Time
Place of meetings
Presiding officer
Members of board in attendance
Items discussed
Motions made and results of votes on motions
Any action to adjourn to executive sessions with
a general statement of purpose
Time of adjournment
(RCW 42.32.030 and for Schools: BP 1440.)
7
Rights of the Public at Meetings
 The OPMA gives any member of the public the right to
attend a meeting. The Act does not give the public rights
other than attendance.
 If members of the public in attendance are disruptive and
make further conduct of the meetings infeasible, they may
be removed. (RCW 42.30.030 and 42.30.050.)
8
Special Meetings
 Any meeting that is not a regular meeting as set out
in the board’s policy for day, time and place is a
special meeting.
 Every member of the board must receive notice at
least 24 hours before the meeting.
 The notice must include:


Time, place of special meeting, and the business to be
transacted
Unlike a regular meeting, there must be an agenda. The board
cannot take final action at a special meeting if it is not on the
agenda
9
Executive Sessions
 Parts of board meetings can be held without the public.
 The public may only be excluded for the reasons listed by
statute. Cannot go into executive session to discuss
“personal issues” or things the board does not want the
public to hear. (RCW 42.30.110.)
10
Executive Sessions
 15 statutory reasons
1.
2.
3.
Matters affections national security;
The selection of a site or the acquisition of real
estate if public knowledge of the matter might
increase the price;
The minimum selling price of real estate if
public knowledge of the matter might depress
the price, but final action selling or leasing
real estate must be taken at a public meeting;
11
Executive Sessions
4. Negotiations on the performance of a publicly bid
contract if public knowledge might increase costs;
5. Complaints or charges against an employer or board
member, however the person complained against may
open the meeting to the public;
6. Qualifications of an applicant for public employment or
review the performance of a public employee, but final
actions must be taken in public and discussions
affecting employees generally must be held in public;
12
Executive Sessions
7. Qualifications of a candidate for appointment to elective
office, but interviews and the final appointment must be
held in public;
8. Discussion with legal counsel, of enforcement actions,
litigation or potential litigation, if public discussion
might result in an adverse legal or financial
consequence.
13
Executive Session
9. To consider, in the case of an export trading company, financial
and commercial information supplied by private persons to the
export trading company;
10. To consider, in the case of the state library commission or its
advisory bodies, western library network prices, products,
equipment, and services, when such discussion would be likely to
adversely affect the network's ability to conduct business in a
competitive economic climate. However, final action on these
matters shall be taken in a meeting open to the public;
11. To consider, in the case of the state investment board, financial and
commercial information when the information relates to the
investment of public trust or retirement funds and when public
knowledge regarding the discussion would result in loss to such
funds or in private loss to the providers of this information;
14
Executive Session
12. 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;
13. To consider in the case of the life sciences discovery
fund authority, the substance of grant applications and
grant awards when public knowledge regarding the
discussion would reasonably be expected to result in
private loss to the providers of this information;
15
Executive Session
14. To consider in the case of a health sciences and services
authority, the substance of grant applications and grant
awards when public knowledge regarding the discussion
would reasonably be expected to result in private loss to
the providers of this information;
15. To consider in the case of innovate Washington, the
substance of grant or loan applications and grant or
loan awards if public knowledge regarding the
discussion would reasonably be expected to result in
private loss to the providers of this information.
16
Executive Sessions
 Complaint against a public employee:
 Complaint triggers an opportunity for the charged officer to
request a public hearing on the respective charge.
 Unclear whether the governing body may also discuss the
complaint in an executive session if the charged member elects
to have the public hearing. (RCW 42.030.110(i)(j).)
17
Executive Sessions
 Evaluating qualifications or performance:
 Either reviewing performance or evaluating qualifications for
potential employment.
 Evaluating qualifications could include interviews, discussions
concerning salaries, wages, other conditions of employment.
Voting, even if preliminary, cannot be held in executive
session.
 Reviewing performance generally used when considering
someone for promotion or wage increase. The final action,
whether beneficial or adverse to the officer, must be in open
session.
(RCW 42.030.110(i)(g).)
18
Discussion with Legal Counsel
 Agency enforcement actions
 Litigation or potential litigation
 Threatened
 Likely to be filed by the agent against the agency
 Legal risks of proposed agency action
(RCW 42.30.110(1)(i).)
19
Exempt Meetings
 Specifically, the Act exempts:
 Certain proceedings involving professional, occupational, and
business licensing;
 Quasi- judicial matters between named parties;
 Matter governed by the Administrative Procedures Act;
 Collective bargaining sessions, negotiations, and discussions.
(RCW 42.30.140)
20
Penalties
 Invalidity of action
 Personal liability
 Costs/attorney fees
 Injunctive relief
 Public Embarrassment
(RCW 42.30.120)21
21
Schadenfreude: A Case Study
Schadenfreude: pleasure derived from
the misfortune of others
22
Hypo 1
Commissioner White is the commissioner of a large fire
district. White wants to enroll the District in the state
Public Employees’ Retirement System (PERS). It is
undisputed that everyone in the District wants to enroll
in PERS and that the enrollment would be a positive step
for the District.
Commissioner White brings up enrolling in PERS while in
an executive session to evaluate the performance of an
employee. After discussing the employee, all members of
board agree that it is a good move and pass a resolution
to enroll in PERS. Is this a violation of the OPMA?
23
Hypo 1
Yes. The resolution must be passed and discussed in
an open meeting. Even a preliminary vote on the
resolution while in executive session is a violation.
Further, while in executive session the board can
only discuss what is on its agenda and the agenda
must be limited to the statutory topics. (Passing a
resolution is not one of the statutory reasons.)
24
Hypo 2
The City Council wants to evaluate the performance of
a city employee named Bob. The Council decides to
evaluate Bob’s performance in an open meeting. Bob
is embarrassed because he does not want his job
performance discussed in an open forum. He argues
that it is a violation of the OPMA to not discuss his
performance in an executive session. Are the
Council’s actions a violation?
25
Hypo 2
No. Nothing in the OPMA requires the Council to hold
an executive session for any of the statutory reasons.
As the Act says, “nothing contained in this chapter
may be construed to prevent a governing body from
holding an executive session.” Washington courts
construe this to hold that an executive session is
permissible for the statutory reasons but not
required.
26
Hypo 3
A city council meets in executive session to consider two applicants for
the city manager position. During the discussion of the applicants'
qualifications, particularly their past city manager experience, it
becomes clear that a majority of the council members are not happy
with the qualifications of either candidate. The discussion then
turns to the search process and whether it was broad enough or
sufficiently advertised to attract all interested and qualified
candidates. A number of council members express dissatisfaction
with the process and express a desire to begin the search for a city
manager anew, with a more comprehensive search process. The
council then closes the executive session and reconvenes the open
session. A motion is made and a vote is taken to reject both of the
candidates for the city manager position the council had evaluated
in closed session. Then a second motion is made and approved to
authorize city staff to develop a new search procedure that is
broader and more extensively advertised than the original search.
Did the council meet improperly in executive session?
27
Hypo 3
Yes and no. The council satisfied subsection (g) by
discussing the merits of the two applicants. It did not
vote on either of the applicants. The fact that it became
clear from the individual council members' expressions
of opinion that neither applicant was sufficiently
qualified from the council's point of view does not allow
any final action in closed session. The vote taken to reject
both applicants took place in open session.
However, the discussion concerning the search process
should have taken place in open session, because it did
not involve evaluating the qualifications of any applicant
for the city manager position.
28
Hypo 4
The five member County 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.
Is this a violation of the OPMA? (hint: is this
considered a “meeting?”)
29
Hypo 4
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 between 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.
30
Hypo 5
The superintendent of the school district announced her
retirement. The five-member school board passed a motion at
its regular meeting to direct the staff to announce the vacancy,
seek applicants, screen them and select the three most
qualified candidates for presentation to the board for their
final selection.
At the next regular meeting, the board decided to schedule a
special meeting the following week to consider three potential
candidates, receive public comment and select the new
superintendent. No particular agenda was created. The
newspaper published the various points of view and the
stories described the time and place of the special meeting.
The entire board attended the special meeting. No other
notice was given. Is this a violation?
31
Hypo 5
No. The notice of the meeting was sufficient, unless the
media had filed a written request for notice of special
meetings. The only notice required of a special
meeting is to the members of the governing body and
only the members of the governing body may raise
the lack of that notice. Here, the members of the
governing body all attended the meeting, waiving
any objection to the lack of notice. The media is only
entitled to notice if the written request is filed.
32