Open Public Meetings Act

Arthur West filed suit under Washington’s Open Public Meetings Act, ch. 42.30 RCW (“OPMA”), against the Pierce County Council and individual Council members based on a series of e-mails between members of the Council and the Pierce County Prosecuting Attorney’s Office. In West v. Pierce County Council, No. 48182-1-II (February 22, 2017), Division II of the Washington Court of Appeals reversed the superior court and held that West had standing to pursue his claims.

RCW 42.30.120 and .130 permit “any person” to bring a lawsuit for sanctions or an injunction based on a violation of the OPMA. Adopting the analysis of Division I of the Court of Appeals in last year’s West v. Seattle Port Commission, 194 Wn. App. 821, 380 P.3d 82 (2016), Division II held that West qualified as “any person” under the plain language of the OPMA. It also determined that this interpretation of the OPMA’s standing requirements did not conflict with the Washington Supreme Court’s decision in Kirk v. Pierce County Fire Protection District No. 21, 95 Wn.2d 769, 630 P.3d 930 (1981).

Although the court held that West had standing to sue, it affirmed dismissal of his OPMA claim on the merits. In an unpublished portion of the opinion, the appellate court agreed with the superior court’s conclusion that no OPMA violation had occurred through the series of e-mail communications, as there was no evidence that the Council members collectively intended to engage in a meeting to transact official agency business.

The Washington State Attorney General’s Office has updated its online Open Government Resource Manual, available on the Attorney General’s Open Government web page here. The 2016 edition updates the 2015 manual and includes:

  • A new table of contents
  • Information about several 2016 statutes and court decisions

The Open Government Resource Manual describes the state’s Public Records Act and Open Public Meetings Act and includes summaries of and links to relevant statutes, court decisions, formal Attorney General Opinions, Public Records Act Model Rules and other materials.

Plaintiff Arthur West filed suit under Washington State’s Open Public Meetings Act, ch. 42.30 RCW (“OPMA”), against the Port of Seattle and Port of Tacoma for excluding West and the public from a series of meetings held between the two ports in 2014. In West v. Seattle Port Commission, et al., No. 73014-2-I (July 5, 2016), the Washington Court of Appeals held that West had standing to pursue his claims under the OPMA, but also held that the Federal Shipping Act of 1984, 46 U.S.C. §§ 40101-41309, preempted application of the OPMA to the ports’ meetings. The Court therefore affirmed dismissal of West’s claims.

Standing Under the OPMA
In holding that West had standing to bring suit, the Court first emphasized that the standing requirements in the OPMA are very broad, allowing “[a]ny person” to bring an enforcement action for violation of the Act. See RCW 42.30.120, .130. It also rejected application of federal standing requirements in this context, explaining that federal case law on standing does not automatically apply to Washington courts interpreting Washington law. The Court of Appeals concluded that the ports had failed to show that West lacked standing in this case.

Continue Reading Federal Shipping Act Preemption and Standing Addressed by Washington Court of Appeals Under State’s Open Public Meetings Act

Washington State’s Open Public Meetings Act (OPMA) has new penalty provisions that take effect today. Previously, a person who knowingly violated the OPMA was subject to personal liability in the form of a $100 civil penalty. RCW 42.30.120. Under the legislature’s 2016 amendments, the penalty has increased to $500 for a first violation and $1000 for any subsequent violation.

The Washington State Office of the Attorney General has issued new guidance on the state’s Open Public Meetings Act (OPMA), Chapter 42.30 RCW. The publication addresses frequently asked questions about boards, commissions, and other public agencies subject to the OPMA that appoint or hire persons for their agencies, such as filling a board vacancy or hiring an executive director.

Click here to view a copy of “Open Public Meetings Act Guidance On Frequently Asked Questions About Processes To Fill Vacant Positions By Public Agency Governing Boards (And Some Suggested Practice Tips)” (June 1, 2016).

The FAQ also refers to the 2016 amendments to the OPMA increasing civil penalties for knowing violations, effective June 9, 2016 (see FAQ Question #15).

The Washington State Office of the Attorney General has issued a new addition of its Open Government Resource Manual. The 2015 manual provides information on the Open Public Meetings Act (OPMA), Chapter 42.30 RCW, and the Public Records Act (PRA), Chapter 42.56 RCW (through October 1, 2015).

Click here for a PDF version of the manual. Click here for an online version. 

This is an update of the Attorney General’s 2007 Manual. 

In Citizens Alliance for Property Rights Legal Fund v. San Juan County (October 1, 2015), the Washington Supreme Court held that informal discussion groups are not “governing bodies” or “committees thereof” subject to the state’s open meetings laws. Prior to San Juan County updating its critical areas ordinances (CAO), a group of county council members, staff, and consultants met approximately 26 times to discuss implementing the CAO updates. Every aspect of the CAO Team was informal: the County Council did not formally create it; members were not formally appointed; and the Team had no formal purpose, no designated responsibilities, and no official relationship to other county departments. Further, the County’s governing body, the County Council, held approximately 100 different meetings, workshops, hearings, or joint hearings regarding the CAO update, all of which were presumably open to the public.

Nevertheless, Citizens Alliance sued to invalidate the ordinances, arguing the CAO Team improperly discussed the CAO update in meetings that did not comply with the Open Public Meetings Act (OPMA). The Court of Appeals ruled against Citizens. Citizens Alliance for Property Rights Legal Fund v. San Juan County, 181 Wn. App. 538 (2014). On further review, the Supreme Court also rejected Citizens’ arguments, emphasizing that the OPMA “does not extend to advisory committees and other entities that do nothing more than conduct internal discussions and provide advice or information to the governing body.” The Court then made a number of holdings clarifying the OPMA’s scope:

Continue Reading Open Meetings Laws Not Applicable To Informal Discussion Groups

In contrast to Washington law, the open-meetings provision of the Arkansas Freedom of Information Act (FOIA) does not define “meetings” that are subject to the Act’s requirements. Here, the Arkansas Supreme Court concludes that submitting a draft ordinance and a memorandum in support of that ordinance does not constitute a meeting subject to the FOIA’s requirements.

In McCutchen v. City of Fort Smith, City Administrator Kelly circulated a draft ordinance expanding his hiring-firing authority, a memorandum supporting the ordinance, and other documents to five of seven members of the Fort Smith Board of Directors in advance of a Board study session. Plaintiff McCutchen sued the City, alleging that Kelly violated the open-meetings provision of the FOIA by engaging in a series of private one-on-one meetings with Board members.

Continue Reading Arkansas FOIA: Soliciting Individual Board Approval Constitutes a Meeting, Providing Background Information Does Not

In an unpublished opinion, Center for Justice v. Arlington School District, No. 627263-1-I (Sep. 4, 2012), a Washington Court of Appeals affirmed a trial court’s conclusion that a school district’s “special meetings” were not “regular meetings” because they did not occur in accordance with a schedule declared by statute or rule. The school district regularly held bi-monthly “business meetings,” which were properly noticed as “regular meetings” under the OPMA. It often held what it called “study sessions” just prior to the regularly scheduled business meetings, following the OPMA notice requirements for “special meetings.” The Center for Justice (CFJ) argued that, because of their frequency, the study sessions should have been noticed as regular meetings. Noting that the OPMA did not define “regular meetings” for agencies other than those of the state, the court interpreted the statute as anticipating two types of meetings: those with dates fixed by rule or law (regular meetings), and all others (special and emergency meetings). Because the dates of the study sessions were not fixed by rule or law, they were not regular meetings and the District’s use of the “special meeting” notice provisions was proper.

The District had conceded violations of the OPMA relating to 21 executive sessions it had commenced without first opening a meeting. The trial court granted judgment to CFJ and awarded its attorney fees, reduced by a “degree of success” it calculated by dividing 21 sessions by 144 total alleged violations, or a 14.6% success rate. The appellate court concluded that because CFJ had alleged multiple violations for each session, the trial court had committed an arithmetic error—essentially dividing the number of rotten apples by the total number of allegedly rotten apple seeds—to produce a meaningless “percentage.” The court remanded for a re-calculation of the fee award.

The appellate court also awarded attorney fees to CFJ on appeal for establishing that the trial court had erred in its fee calculation. Although the District prevailed on the remainder of CFJ’s claims, because CFJ’s appeal was not frivolous, the District received no fee award.