QUORUM VS. WORKING MEETING – Washington Open Meetings Act
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. RCW 42.30.070.
A meeting occurs whenever the governing body of a public agency takes “action” (the meaning of”action” is discussed below). If the required notice has not been given, the action taken is null and void, that is, as if it had never occurred. The OPMA expressly permits the members of the governing body to travel together or engage in other activity, such as attending social functions, so long as they do not take action.
An email exchange among members of a governing body in which an “action” takes place can be a “meeting” under the OPMA. Wood v. Battle Ground School Dist., 107 Wn. App. 550, 564, 27 P.3d 1208 (2001). (Whether a quorum is required is addressed below.) Since an email exchange among members of a governing body is not open to the public, such an exchange in which an “action” took place would violate the OPMA.
It is generally agreed that an agency may conduct its meeting where one of the members of the governing body attends by telephone and a speaker phone is available at the official location of the meeting so as to afford the public the opportunity to hear the member’s input. This should occur only when a member is unable to travel to the meeting site and would not include “telephone trees” where the members repeatedly call each other to form a majority decision.
A quorum of members of a governing body may attend a meeting of another organization’s provided that the body takes no “action” (defined below). 2006 Att’y Gen. Op. No. 6. For example, a majority of a city council could attend a meeting of a regional chamber of commerce or a county commission meeting provided that the council members did not discuss city business or do anything else that constitutes an “action.”
B. What Is “Action”
Statutory provision: “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).
It is important to realize that the OPMA provides that a meeting occurs whenever there is action, including the discussion, deliberation or evaluation that may lead to a final decision. That is, it is the “action” (discussion, etc.) that determines whether a “meeting” has taken place, not whether a “meeting” in the everyday sense of the term (such a gathering of people at City Hall) has taken place. Eugster v. Spokane, 110 Wn. App. 212, 225, 39 P.3d 380, review denied, 147 Wn.2d 1021 (2002).
The notice requirements of the OPMA are not limited to meetings at which a final official vote is taken, which is intended to authorize or memorialize the policy of the governing body. Protect the Peninsula’s Future v. Clallam County, 66 Wn. App. 671, 833 P.2d 406 (1992), review denied, 121 Wn.2d 1011 (1993). That is “final action” under the OPMA and is important for deciding what decisions can be made during an executive session. “Final action” refers to the final vote by the governing body on the matter. One court held that a decision by fire district commissioners to terminate a fire chief was not final action because it was not a decision upon a motion, proposal, resolution, order or ordinance. Slaughter v. Snohomish County Fire Protection Dist. No. 20, 50 Wn. App. 733, 750 P.2d 656, review denied, 110 Wn.2d 1031 (1988). However, in 1989 the legislature amended the statute to require such action to be taken in an open public meeting. See RCW 42.30.110 (l)(g).
A meeting occurs if a quorum (that is, a majority) of the members of the governing body were to discuss or consider, for instance, the budget, personnel, or land use issues no matter where that discussion or consideration might occur. What about if less than a quorum is present? Several cases hold that the OPMA is only triggered by a quorum of the governing body, so the “action” of less than a quorum is not subject to the OPMA. See, e.g, Eugster v. City of Spokane, 128 Wn. App. 1, 8, 114 P.3d 1200 (2005). Others argue that the legislative history of the OPMA indicates that the statute formerly required a quorum for an “action” but was amended to apply to an action with less than a quorum. Laws of 1985, ch. 366, § 1(3).
The OPMA does not allow for “study sessions”, “retreats”, or similar efforts to discuss agency issues without the required notice. Notice must be given just as if a formally scheduled meeting was to be held. In one case, the court held that it was not “action” for members of the governing body to individually review material in advance of a meeting at which a public contract was awarded. Equitable Shipyards, Inc. v. State of Wash., 93 Wn.2d 465, 611 P.2d 396 (1980).
Case example: The five member School Board attend 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.
Resolution: 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.
C. Secret Votes Prohibited
Statutory provision: No governing body of a public agency at any meeting required to be open to the public shall vote by secret ballot. Any vote taken in violation of this subsection shall be null and void, and shall be considered an “action” under this chapter. RCW 42.30.060(2).
“Secret” votes are prohibited and any votes taken in violation of the OPMA are null and void. Presumably, the members of the governing body are required to publicly announce their vote at the time it is taken, and that vote would be recorded in the minutes of the meeting for future reference.
The Special Problem of Advisory Committees
“Advisory committees have long been recognized as special problems….Each new arrangement must be examined anew and in its own context.” Advisory committees may be called task forces or working groups.
Some open meeting statutes apply only to “governing” bodies or bodies with decision-making power. Other statutes expressly extend to policy-making bodies. Still others expressly apply to advisory committees. Groups that have purely fact-finding, informational, recommendatory or advisory purposes with no decision making power are thus excluded from the scope of some open meeting laws. Even in the face of such an exclusion, the open meeting law is not necessarily restricted to those entities with final, binding authority but may apply to those exercising de facto decision-making authority or those created and empowered to make recommendations. When the committee performs functions on behalf of a public body that affect members of the public, the committee may properly be subjected to the open meeting requirements. Moreover, a committee composed entirely or even partially of members of the parent body may be subject to the law even if its role is advisory, because each committee member could become committed as to matters on which foreseeable action would be taken by the parent, and the public would have no opportunity to be heard because the action of the parent body in a public meeting would be only an affirmation of the various secret committee meetings that had been held. Truly advisory committees may be excluded from required compliance with open meeting laws in some States. In each State, the extent to which the subordinate entity exercises actual or de facto decision making authority or is limited to purely advisory, administrative or ministerial tasks is critical to the determination whether the open meeting law will apply.