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Open Public Meetings

Does a code city council violate the Open Public Meetings Act if it meets in executive session to discuss whether to confirm a mayoral appointment?
No. Such an executive session would not violate the Open Public Meetings Act. RCW 42.30.110(1)(g) provides that the council may meet in executive session "to evaluate the qualifications of an applicant for public employment." That provision would apply to an executive session to decide whether to confirm a mayoral appointment. The person "appointed" is still an applicant for public employment, because the appointment is not complete until the council confirms it. This is assuming, of course, that the council has required confirmation of an appointment to that particular office.

For more information, see our Open Public Meetings Act Web page.
Does the Open Public Meetings Act apply to training sessions or team-building exercises involving a governing body?
A "meeting" as defined in the Open Public Meetings Act does not occur simply because a quorum of a governing body is gathered together. A training or team-building session would not be a meeting under the Open Public Meetings Act if the governing body (e.g., city council, board of county commissioners) does not discuss city or county business, as the case may be, or otherwise take action as defined in the Act. Receiving training or engaging in team-building exercises does not inherently require the discussion of city or county business. If the governing body is not going to open such a session to the public, it should be made clear that the members of the governing body are not to discuss business at the session.
Is a workshop meeting attended by less than a quorum of the council subject to the Open Public Meetings Act?
If a workshop meeting is to include less than a quorum of the council, it may or may not be subject to the Open Public Meetings Act, depending upon whether this "committee" would be acting on behalf of the entire council.
May a governing body go into executive session even if it is not on the meeting agenda?
Yes. There is no requirement in the Open Public Meetings Act that an executive session must be listed on the agenda in order for a governing body to go into executive session. A decision may be made at the meeting to go into executive session, and this may be done legally as long as the requirements in the Open Public Meetings Act are followed concerning executive sessions. There are requirements in RCW 35A.12.160, RCW 35.27.300, RCW 35.23.221, and RCW 35.22.288 that the public be made aware of the preliminary agenda of a meeting in advance of the meeting. This does not mean that an item arising after the preliminary agenda has been posted cannot be discussed at the meeting, even in executive session. Final action on the matter may not be taken at the executive session.
May city council interview candidates for city manager in executive session and, while still in executive session, reach a consensus on the candidate to be offered the position?
No. Although the city council may interview the candidates for this appointive position in executive session under RCW 42.30.110(1)(g) for the purpose of evaluating the qualifications of applicants for public employment, it may not take any action other than evaluating the candidates. Identifying a consensus candidate in executive session would be action that is not authorized by this provision for holding an executive session. In Miller v. Tacoma, 138 Wn.2d 318, 328 (1999), the state supreme court stated:
1. May a city council or board of county commissioners meet in executive session to review the qualifications of candidates for selection as an independent contractor?
  No. The only possible provision for executive sessions in the Open Public Meetings Act under which this could possibly fit is RCW 42.30.110(1)(g). That section allows an executive session "[t]o evaluate the qualifications of an applicant for public employment." The council or board could meet in executive session in this case under this provision only if "an applicant for public employment" could be construed to cover an "applicant" to be an independent contractor. Since the Open Public Meetings Act is to be "liberally construed" by the courts so that any exceptions are narrowly confined (RCW 42.30.910 ), a court would not likely construe an independent contractor to be a public employee, since they are two different legal statuses.
2. If the city council or board of county commissioners meets in executive session to consider the purchase of real estate, may it in that executive session direct staff to do some preliminary work concerning acquiring the property?
  Yes, in our opinion, subject to the caution below. Note also that the council or board may meet in executive session to consider purchasing real property only "when public knowledge regarding such consideration would cause a likelihood of increased price."
  Since this provision recognizes that the process of purchasing or leasing real property or selecting real property to purchase or lease may justify an executive session, it implies that the governing body may need to reach some consensus in closed session as to the price to be offered or the particular property to be selected. However, the state supreme court in Miller v. Tacoma, 138 Wn.2d 318, 327 (1999), emphasized that "only action explicitly specified by [an] exemption may take place in executive session." Taken literally, this limitation would preclude a governing body in executive session from actually selecting a piece of property to acquire or setting a price at which it would be willing to purchase property, because such action would be beyond mere "consideration." Yet, the purpose of allowing this type of consideration in an executive session would seemingly be defeated by requiring a vote in open session to select the property or to decide how much to pay for it, where public knowledge of these matters would likely increase its price. Until this issue receives judicial or legislative resolution, city and county legislative bodies should exercise caution.
3. What is considered a "meeting" under the Act?
  A "meeting" generally includes any situation in which a majority of a city council, board of county commissioners, or other "governing body" (including certain kinds of committees) meets and discusses the business of that body.
4. Must meetings be held in a specific place?
  As far as the Open Public Meetings Act is concerned, the meeting may be held at any place inside or outside the territorial jurisdiction of the body unless otherwise provided in the law under which the agency was formed. However, note that for cities and towns, no final action may be taken on an ordinance or resolution if the meeting is held outside the corporate limits of the municipality.
5. Are social gatherings covered by the Act?
  Social gatherings are expressly excepted, unless official business is discussed or transacted at the gatherings. RCW 42.30.070 provides in relevant part as follows: "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."
6. Does the Act require that notice be given for a regular meeting?
  A "regular" meeting is defined as a recurring meeting held pursuant to a schedule fixed by statute, ordinance, or other appropriate rule. The Open Public Meetings Act itself does not require any special notice of a regular meeting. However, later enactments require municipal governing bodies to establish a procedure for notifying the public of all meeting agendas. RCW 35.27.300; RCW 35.23.221; RCW 35.22.288; RCW 35A.12.160.
7. Does the Act require that notice be given for a special meeting?
  A "special" meeting is any meeting other than "regular." A special meeting must be announced by written notice 24 hours in advance of the meeting to all members of the governing body and to the news media who have filed written requests for such notice.
8. When is a committee of the city council subject to the Open Public Meetings Act?
  A committee meeting of the city council is subject to the Open Public Meetings Act when it acts on behalf of the governing body, conducts hearings, or takes testimony or public comment. RCW 42.30.020(2). A committee acts on behalf of the governing body when it exercises actual or de facto decision-making power. If a council committee is merely gathering information which will result in a recommendation to the full council, it most likely is not subject to the Open Public Meetings Act because it is probably not exercising actual decision-making authority in these circumstances.
9. Must an executive session be open to the public?
  No, an executive session is that portion of a meeting from which the public may be excluded. It must be part of a regular or special meeting and, before convening in executive session, the presiding officer must announce the purpose for excluding the public and the time when the executive session will conclude.
10. What is a sufficient statement of purpose regarding an executive session?
  The announcement of an executive session should state the purpose of the session and contain enough general information so that it is clear that the subject matter fits within one of the statutory provisions for an executive session. For example, stating that the executive session is to discuss a "personnel matter" is not sufficient since certain types of personnel matters are not appropriate for an executive session. More specificity is required, for example, "to evaluate complaints against an employee."
11. Does a civil service hearing have to be open to the public?
  Yes. Yes, although the Open Public Meetings Act does not apply to such a quasi-judicial hearing (RCW 42.30.140(2)), state civil service statutes require that a civil service commission hearing must open to the public.
12. Can the Civil Service Commission deliberate in private after the hearing portion of the proceeding?
  Yes. This is allowed by RCW 42.30.140(2) . However, this does not mean the hearing itself may be closed to the public, even if the local rules appear to allow this.
13. Are there instances in which an advisory board would be considered to be a "governing body" of the city?
  If an advisory board conducts hearings or takes testimony or public comment, then it would be considered to be a governing body and must satisfy the requirements of the Open Public Meetings Act.
14. Is a workshop meeting of the council open to the public?
  Yes, a workshop meeting of the council is a meeting which would be open to the public, and such a meeting is either a regular or a special meeting.
15. Must a training session for council and staff members in which no city business will be conducted be open to the public under the Open Public Meetings Act?
  If no "action" as defined by RCW 42.30.020 will be taken at the council and staff training session, it would not need to be open to the public. Because of the likelihood that the councilmembers may end up discussing city business, the safest course is to open the session to the public.
16. What about emergency situations when there is no time for notice to be given before a meeting?
  An emergency triggers suspension of notice requirements under RCW 42.30.070.
17. What if a member of the audience becomes disorderly at a council meeting?
  The Open Public Meetings Act does not guarantee the right of the public to participate or become unruly at a council meeting; it only guarantees that they can attend. It is the role of the presiding officer to see that the public does not become disorderly during a council meeting. A member of the public may be instructed regarding rules of courtesy and, if rules are not followed, the speaker may lose any privilege to speak at the meeting and may even be ejected for disorderly conduct. See RCW 42.30.050.
18. May a member of the public videotape council or commissioner meetings?
  A local government probably may not prohibit the public from using video or tape recorders at a public meeting as long as the taping is done in a reasonable manner and the meeting is not disrupted. See AGO 1998 No. 15 , which opined that a county does not have authority to ban video or sound recording of a meeting open to the public.
19. How many councilmembers are needed to call a special meeting in a code city having a seven-member council?
  The Open Public Meetings Act authorizes the city council, in addition to the mayor, to call special council meetings. However, there is a conflict between a code city statute (RCW 35A.12.110) and an Open Public Meetings Act statute (RCW 42.30.080) as to how many councilmembers are necessary to call a special meeting. The former allows three councilmembers to call a special meeting, and the latter allows a majority of the councilmembers, which would be four in a seven-member council, to do so. The Open Public Meetings Act statute is the one that must be followed here because of RCW 42.30.140 , which states that, in the event of a conflict with another statute, the Open Public Meetings Act will control. Thus, four members of a seven-member council are needed to call a special meeting.
20. Would discussions of city business between two councilmembers be considered a council meeting subject to the Open Public Meetings Act?
  No. Because less than a quorum of the council is present, it would not be considered a council meeting.
21. Must the public be allowed to attend an annual council retreat?
  Yes, a retreat is a council meeting which must be open to the public. Regardless of whether a meeting of the city council is called a council retreat, a council workshop, or a council study session, the Open Public Meetings Act requires that the public be allowed to attend. This does not mean that citizens must be given an opportunity to make comments or discuss issues at the retreat, but they must be allowed to attend. Even if held outside the city limits, a retreat is still a meeting and the public must be allowed to attend. Of course, the statutory provisions governing executive sessions also apply and so the council may convene in executive session for a portion of the meeting if the subject is a proper one for an executive session.
22. May a multi-member legislative body (a quorum of that body) schedule a pre-meeting session or otherwise meet in advance of a meeting to review the upcoming meeting's agenda, collect materials or staff comments for the meeting, and discuss the business that will be considered?
  Not without inviting the public and following the procedural requirements of the the Open Public Meetings Act. The Act requires all meetings of the governing body of a public agency be open and public. RCW 42.30.030 . The Act defines the term "meeting" to be any meeting "at which action is taken." A problem arises for scheduling "pre" meetings, because of the broad definition of the term "action" set out by the Act.
  The term 'action" is defined as:
  
  (3) Action means the transaction of the official business of a public agency by a governing body including but not limited to receipt of public testimony, deliberations, discussions, considerations, reviews, evaluations, and final actions. Final action means a collective positive or negative decision, or an actual vote by a majority of the members of a governing body when sitting as a body or entity, upon a motion, proposal, resolution, order, or ordinance.
  
  RCW 42.30.020(3 ). As one can see, the term "action" is very broadly defined and includes discussions or reviews of agency business. Even though no final action will take place on an issue, this "pre" meeting should be open to the public because a discussion of upcoming business will occur.
23. What happens if the Open Public Meetings Act is violated?
  There are several potential consequences for violating the procedural requirements of the Open Public Meetings Act. Most importantly, actions taken in meetings that violate the Act are null and void, including the passage of ordinances and resolutions. In addition, a member attending a meeting knowing it is being held improperly can be punished by a civil fine of $100. The party that prevails in an action for violation of the Act may recover reasonable expenses and attorneys' fees under certain circumstances. RCW 42.30.120.
24. May a citizen may make a sound recording of a council or board of commissioners meeting and transmit that over the Internet?
  The public has a right to make audio and video recordings of council or board of commissioners meetings, as long as it is done in a way that does not disrupt the meetings. See AGO 1998 No. 15. Given that right, we see no legal reason why a citizen could not transmit that recording over the Internet.
  
  A citizen would not need council or board permission to make the recording or to transmit it over the Internet. However, if a citizen wanted to tap into the council or board's audio amplification system to obtain a clearer audio recording, he or she would need council or board permission for that.
25. May city or county legislative bodies meet in executive session to discuss "matters affecting national security," including terrorism security and response planning?
  Yes. A governing body is authorized under RCW 42.30.110(1)(a) to "consider matters affecting national security" in executive session. While we have not previously encountered a situation where a local government governing body might consider such matters, this appears to be one. Given the events of September 11, 2001, the threat of a terrorist attack or sabotage or the like clearly implicates national security issues. A terrorist attack, by its very nature, can be considered, in addition to a major risk to public safety, to be a matter of national security.
  
  A recent change in the public disclosure law has some relevance to this issue. Although not using national security language, the 2001 state legislature adopted a new public disclosure exemption for the following:
  
  Those portions of records containing specific and unique vulnerability assessments or specific and unique response plans, either of which is intended to prevent or mitigate criminal terrorist acts as defined in RCW 70.74.285, the public disclosure of which would have a substantial likelihood of threatening public safety.
  
  See RCW 42.17.310(1)(ww) (Chapter 98, Laws of 2001). In addition, the legislature made the following findings in Section (1) of this legislation:
  
  The legislature finds that public health and safety is promoted when the public has knowledge that enables them to make informed choices about their health and safety. Therefore, the legislature declares, as a matter of public policy, that the public has a right to information necessary to protect members of the public from harm caused by alleged hazards or threats to the public.
  
  The legislature also recognizes that the public disclosure of those portions of records containing specific and unique vulnerability assessments or specific and unique response plans, either of which is intended to prevent or mitigate criminal terrorist acts as defined in RCW 70.74.285, could have a substantial likelihood of threatening public safety. Therefore, the legislature declares, as a matter of public policy, that such specific and unique information should be protected from unnecessary disclosure.
  
  A "terrorist act" is defined in RCW 70.74.285 as follows:
  
  (A)n act that is intended to: (1) Intimidate or coerce a civilian population; (2) influence the policy of a branch or level of government by intimidation or coercion; (3) affect the conduct of a branch or level of government by intimidation or coercion; or (4) retaliate against a branch or level of government for a policy or conduct of the government.
  
  Given this legislation's policy of nondisclosure of "records containing specific and unique vulnerability assessments or specific and unique response plans" concerning terrorist acts, it would appear that a governing body meeting to discuss terrorism response or security plans would justify similar protection from "disclosure" under RCW 42.30.110(1)(a).
26. Are meetings of the county finance committee subject to the open public meetings act?
  Yes. RCW 36.48.070 provides:
  
  The county treasurer, the county auditor, and the chair of the county legislative authority, ex officio, shall constitute the county finance committee. The county treasurer shall act as chair of the committee and the county auditor as secretary thereof. The committee shall keep a full and complete record of all its proceedings in appropriate books of record and all such records and all correspondence relating to the committee shall be kept in the office of the county auditor and shall be open to public inspection. The committee shall approve county investment policy and a debt policy and shall make appropriate rules and regulations for the carrying out of the provisions of RCW 36.48.010 through 36.48.060, not inconsistent with law.
  
  This statute clearly indicates that the county finance committee, composed of elected officials, is required to adopt investment policies and establishes rules and regulations for the county. Because it is created by statute and possesses policy and rule-making authority, the county finance committee is, under the Open Public Meetings Act (chapter 42.30 RCW), a "subagency" of the county and also the "governing body" of that subagency. See definitions in RCW 42.30.020. Since the Open Public Meetings Act requires the meetings of a governing body of a public agency or subagency to be open to the public (RCW 42.30.030), the meetings of the county finance committee must be open and are subject to the provisions of the Act.
27. Is an employee recognition lunch where employees will be receiving service awards and a majority of the members of the governing body will be present a "public meeting" for purposes of the Open Public Meetings Act?
  If the members of the governing body merely attend the luncheon and do not sit together and discuss city or county business (as the case may be), this would not be a "meeting" of that body under the Open Public Meetings Act. As support for this position, see AGO 2006 No. 6. While not directly on point, this opinion indicates that, in some circumstances, a quorum of a city or county governing body may be in the same place at the same time, without there being a "meeting" of the body itself.
  
  As stated in the AGO, the Open Public Meetings Act would apply if a majority of the governing body are present and they take any "action," which would include voting, deliberating together, or using the meeting as a source of public comment for action by the body. So the members of the governing body should be cautioned to avoid any such actions while they are attending the recognition lunch.