Open Public Meetings

1. Open Public Meetings Basics for Commodity Commission Board Members and Staff Washington State Office of the Attorney General Washington State Department of Agriculture 2014

2. History of the law In 1971, the Washington State Legislature passed RCW 42.30, the Open Public Meetings Act. It is a strongly-worded law designed to promote government transparency and accountability. The OPMA applies to any multi-member board, commission, council, committee, subcommittee, or other policy or rule-making body of a public agency. The OPMA applies to ALLagricultural commodity commissions.

3. Recent changes to the law The 2014 Legislature passed ESB 5964, the Open Government Trainings Act. This new law requires: Every member of a governing body of a public agency must complete OPMA training within 90 days of appointment. Every member must also complete training at least once every four years. Commodity commission board members are required to complete the training.

4. Public attendance “All meetings of the governing body of a public agency shall be open and public and all persons shall be permitted to attend…”. Boards cannot impose any conditions on attendance (e.g. requiring a sign-in) but can establish rules of conduct for meetings. The OPMA allows boards to remove disruptive persons only if the meeting cannot continue with those persons present. RCW 42.30.030

5. Commissions are “public agencies” The governing body of a public agency may take action only in a public meeting. The OPMA applies to commodity commission meetings and action.

6. What is a “meeting?” A meeting occurs whenever there is action, including discussion, deliberation, or evaluation that may lead to a final decision – whether or not final action is taken. Individual review of materials and information in advance of a meeting is allowed but not discussion, deliberation, or evaluation as a group.

7. Which meetings are subject to the OPMA? Meetings at which action is taken. Meetings at which there is a quorum. Meetings of any committee of the board when the committee acts on behalf of the board, conducts hearings, or takes testimony or public comment.

8. What constitutes a quorum of our board? Typically a quorum is met when a majority of the voting members of the board are present at the meeting. Participation by a board member can be in person, by phone or teleconference. You should consult your marketing order or statute for your commission to be sure how a quorum is defined.

9. What is “Action?” Taking “action” at a meeting means the transaction of official business of the board or commission and includes: Public testimony Deliberations Discussions Reviews Evaluations Final Action

10. What does “Final Action” mean? • Final action is a decision or vote by the board or by a committee acting on behalf of the board. • Final action must be taken in a public meeting. • Even if deliberations were in an executive session, the OPMA requires most decisions to be made in open session.

11. E-mail Q: Sometimes e-mails are exchanged ahead of a meeting with documents or issues for an upcoming meeting. Are e-mail exchanges considered to be a meeting under the OPMA? A:The answer depends…

12. E-mail Exchanges E-mail exchanges can be considered a meeting if any of the following occur: • A quorum of the board participates in the e-mail exchanges. • Agenda items are discussed. • Members intend to transact official business. • Members communicate about issues that may come before the board for a vote. BEST PRACTICE: Receivedby e-mail, discussedat meeting.

13. Member Polling • Q: Can board members meet informally or by telephone or e-mail to be polled on a particular issue prior to a board meeting without violating the OPMA requirements? A:No

14. Social Functions • Q: If board members attend a social function together, is that a violation of the OPMA? • A:Social functions are OK unless, of course, you transact official business at the function. • “It shall not be a violation of the requirements of this chapter for a majority of the members of a governing body to travel together or gather for purposes other than a regular meeting or a special meeting as these terms are used in this chapter: PROVIDED, That they take no action as defined in this chapter.” RCW 42.30.070

15. Other Gatherings Here are a few examples: • Q: Are board training sessions, strategic planning sessions or team-building exercises subject to OPMA requirements? • A:It depends upon what occurs during the session, regardless of how it might be titled. The main question is whether the board takes action.

16. Gatherings – Open or Closed? Strategic planning: Must be done in an open meeting. The purpose of strategic planning is to set priorities and goals for the commission. The board will deliberate, discuss and make decisions (take action). These sessions must be open to the public – especially to those who pay assessments to fund programs of the commission. “Team building”: If the session is limited to topics like team dynamics, conflict resolution skills, communication styles or the like, these are probably not subject to the OPMA. However, there is typically no downside to opening the session to the public. The question is always whether the board is taking action. And, remember, action is broadly defined in the OPMA.

17. Voting Votes must be taken in an open meeting. Secret ballots are not allowed. “No governing body of a public agency at any meeting required to be open to the public shall vote by secret ballot. Any vote taken in violation of this subsection shall be null and void, and shall be considered an ‘action’ under this chapter.” RCW 42.30.060(2)

18. Proxy Votes • Q: Can board members vote by proxy? • A:No, only the Director of the Department of Agriculture is allowed to appoint a delegate.

19. Subcommittees – Open Subcommittees must hold open public meetings if: • The subcommittee can make decisions or act on behalf of the board. • The subcommittee conducts hearings or takes testimony or public comment. • The board approves the subcommittee’s recommendation without a full discussion.

20. Subcommittees - Closed Subcommittees are not subject to the OPMA if: • The subcommittee is composed of less than a quorum of board members. • The subcommittee is only tasked with making recommendations to the full board. • The board fully discusses the issue and makes any decision in an open public meeting.

21. Public Notice The public must be given advance notice of the time and place of all meetings. • If the meeting is held by phone or video-conference, instructions for public participation must be provided. • Meetings may either be regular meetings or special meetings. • The OPMA notice requirements differ for each type of meeting.

22. Regular Meetings • Regular meetings are recurring meetings held according to a pre-determined schedule. • Date, time and place of regular meetings for the upcoming year must be filed annually with the Code Reviser for publication in the State Register. • Best practice: Set the following year’s meeting schedule at the last meeting of each year.

23. Changes to Regular Meetings • Schedule changes for regular meetings may not be made unless 20 days notice is given by publication in the State Register. This includes changes in the date, time or location of the meeting. • If 20 days notice cannot be given, then the meeting will be considered a special meeting.

24. Meeting Agendas Agenda Requirements: • In 2014, the OPMA was amended to require that agencies with more than 10 employees post agendas for regular meetings on the agency web site 24 hours before the meeting. • Commissions are encouraged to post or distribute agendas even if exempt. • Agendas should include enough detail to give the public notice of the items under consideration by the board.

25. Meeting Locations Q: Are boards required to meetings in a specific location or within the boundaries of Washington State? A: No. “Unless otherwise provided for in the act under which the public agency was formed, meeting of the governing body need not be held within the boundaries of the territory over which the public agency exercises jurisdiction.” RCW 42.30.070

26. Public Participation Q: Is public participation at meetings required? Does the public have to be given the chance to respond to each agenda item? A: No, the OPMA does not require the board to take public comment. However, best practice is to provide the public an opportunity to participate. The board may limit the time for each speaker or provide a public comment period at the end of the meeting.

27. Documents at Meetings Q: If the board is reviewing documents as part of a meeting, do additional copies need to be made for the audience? A: No, this is not required but is recommended if It doesn’t create a burden. At a minimum, attendees should be provided a copy of the agenda. If your commission has a website, documents could be posted there.

28. Recordings Q: Are members of the public allowed to videotape or record the meetings? A: The OPMA does not specifically address this issue. However, there is general agreement that recording is permitted so long as it does not interfere with the orderly conduct of the meeting.

29. Special Meetings Special meetings can be called with 24 hour notice by the board or presiding officer. The schedule and agenda must be: • Provided to each board member by mail, fax or e-mail. • Delivered to any local newspaper, radio or TV station that has requested notification. • Posted on the agency web site. • Displayed at the agency’s main location and at the meeting site.

30. Special Meetings - Limitations Agenda Requirements: • In a special meeting, action can be taken only on those items listed on the agenda for the meeting. • By contrast, at a regular meeting the board can take action on any matter.

31. Executive Sessions • The public may be excluded from an executive session. • The purpose of the executive session and the time it will end must be announced by the presiding officer in an open meeting. • The board may hold an executive session only for purposes listed in the OPMA. • Any final action is generally taken in open session.

32. Executive Sessions – Real Estate and Contracts An executive session may be held to: • Discuss the selection, acquisition, sale, or lease of real estate. • Review performance on a publicly bid contract only if public review would increase costs. Review of bids, contracts, and contract performance generally should be held in open session.

33. Executive Sessions – Personnel Issues An executive session may be held to: • Receive or evaluate complaints against board members or state employees. • Discuss issues related to public employment (state employees only) including hiring, firing and performance review. Note: salaries and conditions of employment must be discussed in open session if they would be applicable to all commission employees. Independent contractors are notstate employees!

34. Executive Sessions - Litigation An executive session may be held to discuss: • Litigation or potential litigation • Must be with legal counsel (your assigned AAG or an attorney hired with approval of your AAG). • Only when public knowledge regarding the discussion is likely to result in an adverse legal or financial consequence to the agency. WARNING:Just because legal counsel is present doesn’t mean it can be considered an executive session.

35. What is “potential litigation?” Potential litigation means: • Legal action which has been specifically threatened against the commission or a board member. • Legal action the commission reasonably believes may be commenced. • Legal risks of proposed action or current practice when public discussion is likely to result in adverse legal or financial consequences.

36. Meeting Minutes • RCW 42.32.030 requires that minutes be taken for all regular and special meetings and made available for public inspection. • No specific format or content is required. • The minutes should, at a minimum, document the actions of the board with sufficient detail to record discussions and decisions.

37. Meeting Minutes and Executive Sessions • Minutes of executive sessions are not required and not recommended. • These minutes are not designated as confidential so they could reveal the discussions in the executive session.

38. Penalties for Violating the OPMA • A Superior Court can impose a $100 civil penalty against each board member (a violation is civil in nature, so not considered a crime). • A judge may award costs and attorney fees to a party successfully challenging board compliance. • Action taken in violation of the OPMA can be declared null and void. • There could be negative publicity that could affect the commission’s reputation.

39. Responsibility to engage the public As a board member, it is your responsibility to help ensure the public (including those who pay assessments to the commission) have ample opportunity to participate in your board meetings.

40. Final Comments Remember: You represent your constituent growers or handlers. They rely on you to make decisions on their behalf and make sure they know how their assessment dollars are being spent to their benefit and the benefit of their industry.

41. Resources For more information, visit: • The Law: RCW 42.30 apps.leg.wa.gov/rcw/default.aspx?cite=42.30 • The Municipal Research and Services Center (MRSC) OPMA resource page: www.mrsc.org/subjects/legal/opma.aspx • Office of the Attorney General - for additional training on all subjects related to open government: www.atg.wa.gov/OpenGovernmentTraining.aspx

42. And your final action is… Please complete the attached training form. Once completed, return it to your commission administrator so that it can be included in the commission records. OPMA training is required by law. It is important that the commission have a record that you have completed the training.

43. Questions? If you have questions please contact: Kelly Frost, WSDA Commodity Commission Coordinator (360) 902-1802 kfrost@agr.wa.gov