THE OPEN PUBLIC MEETINGS ACT

1. THE OPEN PUBLIC MEETINGS ACT By Donald F. Austin Patterson Buchanan Fobes & Leitch, Inc., P.S.

2. 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.

3. 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.

4. 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).

5. 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

6. 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.

7. 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.)

8. 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.)

9. 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

10. 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.)

11. Executive Sessions • 15 statutory reasons • 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;

12. 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;

13. 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.

14. Executive Session • To consider, in the case of an export trading company, financial and commercial information supplied by private persons to the export trading company; • 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; • 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;

15. Executive Session • 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; • 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;

16. Executive Session • 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; • 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.

17. 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).)

18. 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).)

19. 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).)

20. 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)

21. Penalties Invalidity of action Personal liability Costs/attorney fees Injunctive relief Public Embarrassment (RCW 42.30.120)21

22. Schadenfreude: A Case Study Schadenfreude: pleasure derived from the misfortune of others

23. 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?

24. 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.)

25. 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?

26. 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.

27. 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?

28. 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.

29. 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?”)

30. 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.

31. 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?

32. 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.