Attorney General Opinion (AGO) 2017 No. 5 offers guidance on the confidentiality of information shared in an executive session of a public meeting under the Washington Open Public Meetings Act (OPMA), ch. 42.30 RCW.

The AGO first concludes that participants may not disclose information discussed in a properly-convened executive session under the OPMA. While the OPMA does not expressly state so, the “duty on the part of participants in an executive session not to disclose the information discussed there is part and parcel of the concept of an executive session.” The AGO relied on out of state authority, treatises, and legislative history to support its conclusion that maintaining confidentiality “is a legal obligation, and not solely a moral one.” This duty only extends to information relating to the statutorily authorized purpose for convening the executive session and not already publicly disclosed.

The AGO also concludes that any officer covered by the Code of Ethics of Municipal Officers, RCW 42.23 RCW, violates that statute by disclosing information made confidential by the OPMA. The Code of Ethics prohibits disclosing “confidential information gained by reason of the officer’s position” and applies to “all elected and appointed officers of a municipality, together with all deputies and assistants of such an officer, and all persons exercising or undertaking to exercise any of the powers or functions of a municipal officer.” RCW 42.23.070(4), RCW 42.23.020(2).

Continue Reading Washington State Attorney General Opinion Addresses Confidentiality of Executive Sessions of Open Public Meetings

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.

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.
 

In an editorial on December 9, 2011, the Walla Walla Union-Bulletin commented as follows:

Dec. 09 — The budget discussion between Sheriff John Turner and the three county commissioners got heated this week when it veered off course.

Instead of focusing on the specifics of the budget, the meeting became a debate over whether commissioners Gregg Loney, Greg Tompkins and Perry Dozier should meet individually with Turner and his command staff to discuss and develop strategic plans for the Sheriff’s Office.

It is simply not the job of the county commissioners to help develop strategic plans for the Sheriff’s Office. That is the sole responsibility of the county sheriff, who is directly elected by the people of Walla Walla County.

The Board of County Commissioners is a legislative body. The commissioners are elected to oversee the overall operation of the county, which includes establishing the budget.

Continue Reading Walla Walla Union-Bulletin Urges County Commissioners and Sheriff to Meet in Public

On November 25, 2011, Sharon Salyer of The Herald reported on Everett School Board planning to hold a forum early next year to discuss open government. The following is a reprint of the article in full:

Controversy has swirled around the Everett School Board all year over openness and transparency.

The school board now plans to hold a forum early next year to have outside experts discuss issues such as the state Open Public Meetings Act and the steps involved in getting records from government agencies.

Ed Petersen, school board president, suggested during a meeting Tuesday night that the school district contact a nonpartisan group, such as the League of Women Voters. The group could help select the experts who would speak on the state’s open-government laws.

The goal is to have the event in January or February, Petersen said. It would give the public an opportunity to talk about openness in government.

Continue Reading Everett School Board Plans a Meeting About Meetings