In its second decision related to the Port of Vancouver’s lease of property for a new rail terminal facility to export petroleum products, 1 the Washington Supreme Court held that the Port appears to have violated the state’s Open Public Meetings Act, ch. 42.30 RCW (OPMA), in its discussion of the lease during five executive sessions held in 2013.
The case centers on RCW 42.30.110(1)(c), which permits public agencies to meet in executive session to “consider the minimum price at which real estate will be offered for sale or lease when public knowledge regarding such consideration would cause a likelihood of decreased price.” After considering the plain language of the statute, its legislative history, and the practical impacts of a narrow interpretation, the Court unanimously adopted a narrow reading of the statute:
We now hold that a government entity may enter executive session to discuss the minimum acceptable value to sell or lease property, but not to discuss all factors comprising that value. To the extent that various factors directly alter the lowest acceptable value, the governing body may discuss how these factors impact the minimum price; but general discussion of the contextual factors themselves must still occur at an open public meeting.
The Court rejected arguments that the Port’s negotiating power would be jeopardized by the more narrow interpretation of the statute, stressing that it is the role of the legislature to balance the practical implications and possible disadvantages of the OPMA.
The Court provided the following explanation of how the exemption should function as a practical matter:
The factors behind price—the quantity of land, the environmental impacts, the property improvements, etc.—can and must be discussed in public even if their specific dollars-and-cents impact on price is considered in executive session. Having educated themselves on the issues relevant to the property in an open session, commissioners can then retire to executive session to decide an appropriate minimum value for the lease or sale of that property. . . . Commissioners can properly reference the reason for a particular price without making those factors the focus of discussion. Again, focus is key. Contextual references are appropriate so long as the goal and outcome of the discussion remains identification of the lowest acceptable value.
In reviewing the underlying facts of the case, the Court determined the Port’s executive sessions on the lease concerned factors influencing price and were not themselves focused on arriving at a minimum price. The Court therefore reversed the summary judgment entered for the Port of Vancouver and remanded for further proceedings consistent with the Court’s analysis.
1. The previous decision in Columbia Riverkeeper v. Port of Vancouver USA, 188 Wn.2d 80, 392 P.3d 1025 (2017), addressed claims under the State Environmental Policy Act (SEPA)↩