Unlocking the Open Public Meetings Act How to Improve Compliance and Promote Transparency
Michael J. Reitz General Counsel Evergreen Freedom Foundation
October 2010
INTRODUCTION Washington’s Open Public Meetings Act (OPMA) requires that meetings of the governing body of a public agency be open to the public. The OPMA provides broad guidance for public agencies, but there are many opportunities for agencies to run afoul of the law unintentionally. This white paper discusses a number of instances where agencies were either found in violation of the OPMA or where the alleged violation raised concerns about the agency’s practice. In many cases public officials were not aware that a particular action violated the OPMA. The lack of regular training and limited case law exacerbate the problem of noncompliance. Additionally, members of the public face a high threshold of proof when alleging an OPMA violation. This white paper recommends developing a tool to assist public agencies in their efforts to comply with the OPMA. The Office of the Attorney General, in keeping with its responsibility to advise agencies, should develop and publish model rules for compliance with the OPMA.
OVERVIEW OF THE OPEN PUBLIC MEETINGS ACT The Open Public Meetings Act chapter 42.30 RCW, was adopted by the Washington Legislature in 1971 and is based on the open meetings laws in California and Florida. 1 It has gone through various revisions but the original legislation remains largely intact. The OPMA opens with a strong declaration regarding the actions of public bodies: 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.2
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The basic requirements of the OPMA are listed at RCW 42.30.030: “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.” The Office of the Attorney General has developed a four-part test to determine whether an entity is a “public agency” for purposes of 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.”3 The OPMA defines “governing body” 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.”4 The OPMA defines “meetings” as “meetings at which action is taken.”5 “Action” is defined as “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.”6 “Final action” is “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.”7 All meetings subject to the requirements of the OPMA must be announced properly and open to the public, with separate notice rules for regular and special meetings. The time and place of regular, recurring meetings are to be filed with the code reviser each year for publication in the Washington State Register.8 Any change from the published meeting schedule requires a new notice twenty days prior to the rescheduled meeting date. Special meetings may be called at any time.9 Notification of the meeting must be delivered at least twenty-four hours before the time of the meeting, and the notice must specify the time and place of the special meeting, along with the business to be transacted. Governing bodies are permitted to hold executive sessions in private during a regular or special meeting.10 There are restrictions, however, on the topics that can be discussed during executive session. Among the topics that can be discussed: national security, the acquisition of real estate, review of negotiations on the performance of
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publicly bid contracts, evaluation of complaints brought against a public officer or employee, evaluation of the qualifications of an applicant for public employment, review of the performance of a public employee, and discussion of legal issues with counsel.11 Violating the OPMA can result in consequences for public officials. Any person who alleges an OPMA violation and prevails in court is entitled to an award of costs and attorneys fees.12 Each member of a governing body who knowingly violates the OPMA can be held personally liable with a civil penalty of $100 imposed.13 The actions taken in a meeting that fails to comply with the law can be nullified.14 Additionally, the public officials who violate the law can be recalled by voters. In 2006, Port of Seattle Commissioner Pat Davis signed a memorandum that appeared to guarantee the Port’s CEO up to a full year’s pay (amounting to $339,841) upon his resignation.15 Davis maintained that she acted with the full commission’s approval, though this was contested. A citizen brought a recall petition against Davis, and ultimately the Washington State Supreme Court allowed the recall to proceed on the basis that Davis committed malfeasance by obligating the port to pay the retirement package without a public vote.16 Davis chose not to run for re-election, and ultimately not enough signatures were gathered to place the recall on the ballot.17
PITFALLS FOR PUBLIC AGENCIES While the provisions of the OPMA are straightforward and provide broad guidance, there are many opportunities for public agencies to run afoul of the law. For example, the State Auditor’s Office reported hundreds of instances over a three-year period where agencies either violated the law or raised concerns by failing to document adequately their compliance with its provisions.18 Table 1 details the number of these incidents by specific categories of actions. Whether a government body violates the OPMA or simply ignores the spirit of the law, this can deplete the public’s confidence in their public officials. What may be an innocent action on the part of an elected official could explode into a significant controversy if members of the public or the news media perceive that some public business is being conducted in secret.
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Table 1: Open Public Meetings Act Issues Identified 2004–2007
Type of Issue
Number of Incidents
Failed to clearly document the purpose of executive sessions.
315
Failed to document the expected duration of an executive session.
189
Convened an executive session for an unallowable purpose.
40
Discussed legal matters in executive session without an attorney present.
10
Conducted executive sessions before public meetings began or outside of open public meetings.
17
Took action without a quorum present.
2
Took action inside of an executive session.
18
Failure to produce evidence minutes were taken or officially approved.
23
Total
614 *Source: Washington State Auditor’s Office19
The following is a discussion of several actions that can potentially ensnare members of governing bodies in a violation of the OPMA. Improper Executive Sessions An especially troublesome issue for public agencies is the executive session. The OPMA permits governing bodies to hold executive sessions in private but severely restricts the topics that can be discussed. Despite these restrictions, many executive sessions are improperly convened. In fact, most of the incidents discussed in the auditor’s report referenced above dealt with executive sessions.
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The State Auditor’s Office has reported numerous violations discovered in the process of the accountability audits it conducts. The Monroe City Council, while discussing a proposal to give a $4,000-per-month pay increase to the police chief, voted to take the discussion behind closed doors.20 An investigation showed that the council spent one-third of its time in executive session in the first five months of 2009. The Chelan County Fire Protection District convened 37 executive sessions without sufficiently documenting them to show compliance—34 sessions were classified under the inadequately vague heading of “personnel.”21 The Town of Conconully held two executive sessions for unallowable purposes: one to discuss the budget and another to discussion a petition for street vacation.22 The Town also failed to record the length of the sessions in four instances. The board of the Mercer Island School District No. 400 met twice in executive sessions for the stated purpose of “potential litigation,” but there was no evidence that an attorney was present, as required.23 The board also convened numerous executive sessions that were not held during a regular or special meeting. The Yelm Fire District board of commissioners held numerous executive sessions to discuss “criteria for a computer management consultant,” “various criteria for a personnel position,” “contracts,” and “office personnel.”24 None of these is a legal basis for an executive session. Discussions Over E-mail The ease of communication by e-mail can create hazards for members of a governing body. In the case of Wood v. Battle Ground School District,25 four members of a sevenmember school board exchanged e-mail messages about board business after three newly elected members took their oaths of office. A terminated district employee brought suit against the board and several members for violating the OPMA. The Court of Appeals stated that the OPMA’s broad definition of “action” includes many forms of communications—not just face-to-face meetings. The court held that if a quorum is involved in an e-mail conversation about public business, the body is, in effect, conducting a meeting that is subject to the requirements of the OPMA. For example, the State Auditor’s Office issued an audit finding against the Chelan County Fire Protection District No. 7.26 The auditor determined that the fire district had
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violated the OPMA when the three members of the Board of Commissioners conducted an e-mail discussion regarding the fire chief’s recent resignation. The audit noted that “action,” as defined by state law, includes discussion; thus, e-mail discussions would be considered action requiring a public meeting. Illustrating the lack of clarity on the OPMA’s requirements, the fire district pointedly contested the audit finding, stating: “Regarding email communications, the Board has been advised that nothing is wrong with communicating about administrative matters in advance of a public meeting. The District’s attorney specifically stated, ‘as long as no substantive discussions occur or decisions made, there is nothing wrong with email communications before or after a meeting.’”27 Several members of the Olympia City Council were criticized for exchanging e-mails about official business while council meetings were in progress.28 According to The Olympian, individual council members discussed a variety of issues by e-mail, including whether to extend public comment periods, counting potential votes on a decision, asking for support on a motion, and even disparaging a member of the public. As the law requires that deliberations and discussions occur in a public context, the appearance of impropriety is heightened with the use of e-mail. Serial Meetings A governing body could potentially violate the law through the use of a “serial meeting” where a majority of the members conduct a series of smaller meetings to take action or form a collective position, though a quorum is not present at the same time. The court in Wood v. Battle Ground School District listed several examples of ways in which serial meetings could occur: 1) a series of telephone calls between individual members and an attorney to develop a collective commitment on public business, 2) successive meetings between the school superintendent and individual school board members, 3) the use of serial electronic communication by a quorum of the public body to deliberate toward or to make a decision, and 4) the use of “telephone trees,” where members repeatedly phone each other to form a collective decision.29 For example, in 2009, members of the Seattle City Council planned to meet with the mayor’s staff to discuss the city’s significant budget shortfalls. 30 The plan was to conduct a series of closed-door meetings with less than a quorum of council members at each
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meeting in order to avoid the requirement for a public meeting. This drew criticism from public interest groups, the Seattle Times editorial page, the Attorney General’s Office, and the city attorney, and the council subsequently abandoned the plan.31 Social Occasions The open meetings law permits members of a governing body to interact with each other outside of a public context without triggering the public meeting requirements. For example, members may travel together.32 Similarly, the Office of the Attorney General has said that members may gather at a social function.33 In these situations, however, public officials must exercise care. The relevant fact is not whether a quorum is in the same room at the same time, but whether the body took action. If action occurs, then a meeting has occurred, and the public meeting requirements would apply. Warning of this potential, the Office of the Attorney General noted that a governing body could trigger OPMA requirements if a majority attended a meeting called by a third party if the members discussed future decisions or heard testimony at the meeting that addressed official public business.34 A Mukilteo councilwoman’s “tweet” inadvertently revealed one such questionable gathering.35 After a long council meeting, the member posted a message on her Twitter account announcing that city staff and some of the council planned to debrief and relax at a local restaurant over a late dinner. While a social gathering is certainly permissible, the councilwoman’s comment about “debriefing” raised questions of whether public business was being conducted in a private setting. Committee Meetings When members of a governing body sit on a subcommittee, that committee’s meetings can be subject to the provisions of the OPMA. The OPMA’s 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.”36 The Office of the Attorney General has stated that a committee of the governing body must comply with the OPMA “when it acts on behalf of the governing body by exercising actual or de facto decisionmaking power.”37
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Nevertheless, committee meetings are a source of ongoing dispute and confusion. The State Auditor’s Office found that the Spokane County Air Pollution Control Authority violated the OPMA when a majority of board members sat on an advisory selection committee.38 The committee was formed to develop desired qualifications for the director position, advertise the position, and narrow the pool of candidates to three. The OPMA applied, but the committee met without providing special meetings notices and did not take minutes. The Authority insisted, however, that the selection committee was only advisory and had no authority to act on behalf of the governing body. Another committee dispute currently rages in Oak Harbor. In March 2010, a quorum of the Oak Harbor City Council attended a standing committee meeting to discuss a public works project at the invitation of the mayor. 39 The committee meeting was advertised but not as a special meeting of the full council. The Whidbey News-Times raised questions about this practice. The attorney general’s open government ombudsman stated that if a majority of the council attends a committee meeting, then the meeting must be announced as a special meeting, even if it was previously announced as a committee meeting. 40 The city council later adopted an ordinance that converted the council’s standing committee meetings into regular meetings of the council.41 The ordinance drew additional criticism, prompting a state legislator to request a formal opinion from the attorney general. Notice of Meetings and Meeting Minutes Regular and special meetings must be announced according the procedures set out in the OPMA, and meeting minutes must be taken,42 but agencies occasionally overlook these requirements. For example, the Spokane County Air Pollution Control Authority held a special meeting to interview candidates for the director position. The meetings were adjourned and reconvened three times over a period of several weeks, but the times and places for continuation of the meetings were not posted as required.43 The Deer Park City Council met several times with a non-profit organization that operated a fair on property leased from the city, but these meetings were not advertised to the public.44 The council also failed to take minutes for at least three meetings. The Port of Quincy’s public meetings were scheduled for the second and fourth Thursdays of each month but the Port failed to
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publish notices for these meetings.45 The audit also showed that meeting minutes were not available for 22 Port meetings.
WHY THE TROUBLE? Despite the Open Public Meetings Act’s strong mandate for conducting the public’s business in open, many public agencies struggle to comply with the law. So why is that, and how can this problem be resolved? Open government experts point to a number of potential causes. In many of the audit findings issued by the State Auditor’s Office, agencies admit a lack of knowledge of the OPMA’s provisions. While newly elected officials may receive training in OPMA provisions, the particulars of the law can be overlooked when officials get in “live-fire” interactions where public action is occurring. “Open meetings violations usually arise out of ignorance, and the lack of educational opportunities about the OPMA for elected officials needs to be remedied,” says Ramsey Ramerman, an attorney and president of the Washington Association of Public Records Officers. Regular training sessions or situational discussions when a governing body has an OPMA question could greatly improve compliance. Toby Nixon, president of the Washington Coalition of Open Government, agrees that lack of training is a factor, but he also cites the problem of discussing unauthorized topics during executive session. “This is not a training issue so much as it is carelessness, stubbornness, fear of political repercussions, and a lack of courage on the part of individual board members to take a stand against their fellow members,” Nixon says. “It is just too tempting to conduct politically uncomfortable or potentially embarrassing discussions behind closed doors, out of the reach of the public’s ears and recorders, and difficult to rein in conversations and keep them focused on the announced topic.” Nixon recommends a change in the law that would give agencies the option to record executive sessions and allow for private review by a judge if there is an allegation of a violation. Another exacerbating factor is that agencies have relatively little guidance from the courts. This can be attributed in part to the lack of incentives for members of the public in bringing OPMA complaints. For example, the Public Records Act allows a prevailing party who shows a violation to recover costs and attorneys fees, as well as a mandatory per-day
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penalty (up to $100 per day) for records wrongfully withheld.46 The OPMA, in contrast, only permits recovery of costs and attorneys fees, and lacks a penalty incentive. A $100 fine can be levied against a public official who violates the OPMA, but the person bringing the complaint must show that the official intentionally violated the law, which requires a high threshold of proof. The lack of financial awards and the high threshold for prevailing serve as disincentives for individuals who discover a possible OPMA violation; thus, the courts haven’t issued many opinions amplifying the law’s provisions. Since the OPMA’s adoption, only 77 appellate decisions mention the law, and only a handful of those specifically address its provisions. By comparison, the Public Records Act is cited in 192 appellate decisions over a similar period of time.
RECOMMENDATIONS Public agencies would benefit from clearer guidance on ways to conform to the OPMA’s requirements. The legislature could improve educational opportunities by mandating training for newly elected public officials and staff who serve governing bodies. Additionally, in order to advance the goal of transparent government operations, the Office of the Attorney General should develop and promulgate advisory model rules to assist members of the public and public agencies operating under the OPMA. This is provided for in the statute and has a recent blueprint. RCW 42.30.210 provides: “The attorney general’s office may provide information, technical assistance, and training on the provisions of this chapter.” Additionally, in 2006 and 2007, the attorney general adopted two sets of model rules to assist agencies seeking to comply with the Public Records Act. The Attorney General’s Office could amplify the OPMA resources it provides by developing a set of model rules and best practices for public officials who fall under the provisions of the OPMA. Such a resource would greatly serve the public’s interest of remaining informed so that they can exercise proper control over their state and local government entities.
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ENDNOTES Laws of 1971, 1st Ex. Sess., ch. 250. RCW 42.30.010. 3 1991 Op. Att’y Gen. No. 5. 4 RCW 42.30.020(2). 5 RCW 42.30.020(4). 6 RCW 42.30.020(3). 7 Id. 8 RCW 42.30.075. 9 RCW 42.30.080. 10 RCW 42.30.110. 11 Id. 12 RCW 42.30.120. 13 Id. 14 RCW 42.30.060. 15 Kristen Millares Young, “Supreme Court opens door for Davis recall,” Seattle Post-Intelligencer, August 15, 2008. [link] 16 In re Recall of Davis, 164 Wn.2d 361, 193 P.3d 98 (2008). 17 Bob Young, “Effort to recall Port Commissioner Davis fails,” Seattle Times, April 30, 2009. [link] 18 Washington State Auditor’s Office, “Open Public Meetings Act, Issues Identified 2004–2007.” [link] 19 Washington State Auditor’s Office, “Open Public Meetings Act And Executive Session Issues Identified 2004–2007.” [link] 20 Debra Smith, “Monroe’s business gets done in secret,” The Herald, June 28, 2009. [link] 21 Washington State Auditor’s Office, Accountability Audit Report No. 1001647, March 10, 2009. [link] 22 Washington State Auditor’s Office, Accountability Audit Report No. 75137, June 18, 2008. [link] 23 Washington State Auditor’s Office, Accountability Audit Report No.72694, May 14, 2007. [link] 24 Washington State Auditor’s Office, Accountability Audit Report No. 73970, December 21, 2007. [link] 25 Wood v. Battle Ground School District, 107 Wn.App. 550, 27 P.3d 1208 (2001). 26 Washington State Auditor’s Office, Accountability Audit Report No. 1001647, March 10, 2009. [link] 27 Id. 28 Matt Batcheldor, “Mayor asks that council limit e-mail discussions,” The Olympian, January 5, 2009. [link] 29 Wood, 107 Wn. App. at 563. 30 Emily Heffter, “Seattle mayor, council want closed budget talks,” Seattle Times, April 9, 2009. [link] 31 Emily Heffter, “Seattle City Council ends its closed-door budget briefings,” Seattle Times, April 11, 2009. [link] 32 RCW 42.30.070. 33 1971 Op. Att’y Gen. No. 33 at 19. 34 2006 Op. Att’y Gen. No. 6. 35 Chris Fyall, “‘Tweets’ bring possibly illegal meeting to light,” The Herald, June 18, 2009. [link] 36 RCW 42.30.020(2). 37 1986 Op. Att’y Gen. No. 16. 38 Washington State Auditor’s Office, Accountability Audit Report No. 71900, July 10, 2006. [link] 39 Jenny Manning, “Oak Harbor City Council runs afoul of Open Public Meetings Act,” Whidbey News-Times, March 12, 2010. [link] 40 Id. 41 Justin Burnett, “State Rep. Barbara Bailey seeks official opinion on Oak Harbor public meeting policies,” Whidbey News-Times, June 20, 2010. [link] 42 The requirement to take meeting minutes is found outside the OPMA at RCW 42.32.030. 43 Washington State Auditor’s Office, Accountability Audit Report No. 71900, July 10, 2006. [link] 44 Washington State Auditor’s Office, Accountability Audit Report No. 72403, October 24, 2006. [link] 45 Washington State Auditor’s Office, Accountability Audit Report No. 71528, May 4, 2006. [link] 46 RCW 42.56.550. 1 2
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