This page highlights key court decisions and attorney general opinions regarding the Washington State Open Public Meetings Act (OPMA). For a general overview of the OPMA, see Open Public Meetings Act.
Purpose of the OPMA
The purpose of the OPMA is to permit the public to observe all steps in the making of government decisions.
Cathcart v. Andersen, 85 Wn.2d 102 (1975) – Meetings of the university’s law school faculty are subject to the OPMA, despite the power of the board of regents to ultimately overrule the law school faculty's decisions. The Act entitles the public to be present at all stages of the decision-making process.
Governing Bodies Subject to the OPMA
When does a committee of a governing body "act on behalf of" the governing body?
Citizens Alliance for Property Rights Legal Fund v. San Juan County, 184 Wn.2d 428 (2015) – The court held:
- A "meeting" of a governing body for purposes of the OPMA occurs when a majority of its members gathers with the collective intent of transacting the governing body's business;
- A "committee thereof" with respect to a given governing body is an entity that the governing body created or specifically authorized, regardless of whether the committee includes members of the governing body; and
- A committee "acts on behalf of" a governing body when the committee exercises actual or de facto decision-making authority on behalf of the governing body.
The OPMA applies to the Washington Association of County Officials.
West v. Wash. Ass'n of County Officials, 162 Wn. App. 120 (2011) – The application of the OPMA to any "other state agency which is created by or pursuant to statute" includes "an association or organization created by or pursuant to statute which serves a statewide public function." The court held that the Washington Association of County Officials is subject to the Act under this definition because it was created by statute and because elected public officials performed its activities financed by public money with an express legislative mandate to act as a coordinating agency for all of Washington's 39 counties.
The OPMA applies to a quorum of members attending a meeting not called by their governing body only if “action” is taken.
AGO 2006 No. 6 – Addresses the applicability of OPMA when a quorum of the members of a governing body are present at a meeting not called by that body. It concludes that the presence of a quorum of the members of a city or county council at a meeting not called by the council does not, in itself, make the meeting a "public meeting" of that city or county council for purposes of the OPMA. The Act would apply if the councilmembers took any "action" as defined in RCW 42.30.020(3) at the meeting, such as voting, deliberating together, or using the meeting as a source of public testimony for council action.
The OPMA doesn't apply to election workers, as they are not a governing body.
Loeffelholz v. C.L.E.A.N., 119 Wn. App. 665 (2004) – A group of election workers were not the "governing body" of a "public agency." They were not organized, by statute or any other provision of law, into either a "public agency" or a "governing body." A "meeting" could not be subject to the OPMA unless it was the "meeting" of the "governing body" of a "public agency." The election workers could not be a "governing body" unless they had policy-making or rule-making authority, which they did not possess.
The OPMA doesn't apply to "members-elect" of a governing body.
Wood v. Battle Ground School District, 107 Wn. App. 550 (2001) – The OPMA does not apply to members-elect of a governing body, because they have no authority to transact the official business of the public agency.
What Constitutes an "Action"?
Final action can occur without a formal vote.
Eugster v. City of Spokane, 110 Wn. App. 212, review denied, 147 Wn.2d 1021 (2002) – For purposes of the OPMA, an "action" taken by a governing body can constitute final action where the members of the governing body arrive at a consensus position or agree to a collective positive or negative decision; a final action does not always require a formal vote.
A quorum is required before official “action” can occur, with some exceptions.
Eugster v. City of Spokane, 128 Wn. App. 1 (2005) – The general rule is that a quorum (or a majority) of the governing body is required for the body to take “action” and be subject to the OPMA.
Citizens Alliance for Property Rights Legal Fund v. San Juan County, 184 Wn.2d 428 (2015) – The OPMA can apply to a meeting of a committee of a governing body consisting of less than a quorum of the governing body when that committee acts on behalf of the governing body by exercising actual or de facto decision-making authority for the governing body. (Under RCW 42.30.020(2), a committee of a governing body is also subject to the OPMA If it conducts a hearing or takes testimony or public comment.)
What Constitutes a Meeting of a Quorum?
Meetings subject to the OPMA can occur over email.
Citizens Alliance for Property Rights Legal Fund v. San Juan County, 184 Wn.2d 428 (2015) – Members of a governing body "must collectively intend to meet to transact the governing body's official business" for their communications to constitute a meeting. The passive receipt of emails and other one-way forms of communication does not, by itself, amount to participation in a meeting because such passive receipt of information does not demonstrate the necessary intent to meet. If communications – email or otherwise - do not reflect the requisite collective intent to meet, no "meeting" has occurred and the OPMA does not apply.
Wood v. Battle Ground School District, 107 Wn. App. 550 (2001) – The OPMA can apply, depending on the circumstances, to email communications between a majority of the members of a governing body. An exchange of email can constitute a "meeting" under the OPMA, if a majority of the members "collectively intend to meet [by email] to transact the governing body's official business" and they "communicate about issues that may or will come before the [governing body] for a vote." However, the OPMA is not violated when the members of a governing body merely receive information by email about upcoming issues.
Does a “negative quorum” constitute a quorum for purposes of the OPMA?
Citizens Alliance for Property Rights Legal Fund v. San Juan County, 184 Wn.2d 428 (2015) – A negative quorum refers to the situation where the number of members present would be sufficient to block the passage of legislation – in this case, three members of the county council. (When this case was brought, the county council had six members.) Noting that it might be difficult to apply a negative quorum rule because different measures being discussed by a governing body might require the approval of different numbers of members for passage, the court declined to overturn prior precedent and reaffirmed that the OPMA applies to meetings of a governing body when a majority of the governing body's members are present.
Holding a Meeting by Telephone or Video Conferencing
A governing body can hold a public meeting via telephone or video conferencing.
AGO 2017 No. 4 –A governing body can hold a public meeting by telephone or video conferencing so long as the speaker phone or video is: (1) provided at the designated meeting place, at the designated meeting time; and (2) attending members of the public can hear all discussion, provide testimony, and otherwise be aware of the governing body’s steps in taking its official action.
Emergency must be a severe one.
Mead Sch. Dist. No. 354 v. Mead Educ. Ass’n, 85 Wn.2d. 140 (1975) – The type of emergency contemplated by RCW 42.30.070 and RCW 42.30.080 to justify meeting without having to comply with the OPMA is a severe one that “involves or threatens physical damage” and requires urgent or immediate action. Thus, a teachers’ strike does not justify an “emergency” meeting by the school board.
Ratification of invalid act is null and void.
Clark v. City of Lakewood, 259 F.3d 996 (9th Cir. 2001) – Although RCW 42.30.060(1) provides that any action taken at a meeting held in violation of the OPMA is null and void, the statute does not require that subsequent actions taken in compliance with the Act are also invalidated. But, where action taken in open session merely ratifies an action taken in violation of the Act, the ratification is also null and void.
Previous discussion does not necessarily invalidate an otherwise proper formal action.
OPAL v. Adams County, 128 Wn.2d 869 (1996) – Although two commissioners discussed their intention to issue a permit over the telephone the night before a public hearing on the matter, the court determined that invalidation of an otherwise proper formal action of a public body is not required merely because the subject matter of that formal action was previously discussed at a nonpublic meeting.
Passage of ordinances and other formal actions must be taken at public meetings.
Slaughter v. Fire District No. 20, 50 Wn. App. 733 (1988) – Ordinances, resolutions, and other regulations or rules must be adopted at open public meetings; otherwise they are invalid.
Only the action explicitly authorized may take place in an executive session.
Miller v. Tacoma, 138 Wn.2d 318 (1999) – Balloting by city councilmembers when meeting in executive session to evaluate the qualifications of applicants for appointment to the planning commission violates the OPMA. Council balloting to achieve a consensus on a candidate for appointment to the commission was beyond the scope of the action that may take place in executive session for the purpose of evaluating candidate qualifications. The council's secret balloting was illegal even though it took a final vote on the appointment in open session.
Settlement agreements must be approved in open session.
Feature Realty, Inc. v. Spokane, 331 F.3d 1082 (9th Cir. 2003) – Action taken in executive session by a city council to approve a settlement agreement (a "collective positive decision") is beyond the scope of action that may be taken in executive session under RCW 42.30.110(1)(i) for discussion of litigation, potential litigation, or enforcement actions.
Discussion of potential litigation in executive session.
Recall of Lakewood City Council, 144 Wn.2d 583 (2001) – The authorization in the OPMA for a governing body to meet in executive session to discuss potential litigation applies when a governing body engages in a candid discussion with legal counsel regarding the legal risks and consequences of potential litigation. RCW 42.30.110(1)(i) does not require a governing body to determine beforehand whether disclosure of the discussion would or would not likely cause adverse legal consequence. This statutory exception to the open meeting requirement is unavailable only if, from an objective standard, the governing body should know beforehand that the discussion is benign and will not likely result in adverse consequences. (Note: The 2001 legislature amended RCW 42.30.110(1)(i) by defining "potential litigation." This amendment did not apply to this case, but, in any event, it does not appear that the amendment would have changed the court's holding if it had applied.)
Public Conduct in an Agency Meeting
Removal of disruptive person is allowed.
In re Recall of Kast, 144 Wn.2d 807 (2001) – If members of the public in attendance at a meeting are disruptive and make further conduct of the meeting infeasible, they may be removed. However, the discretion to order removal of a disruptive person from a meeting must be exercised reasonably.
Committee Meeting Notice
Notice required for committee meeting attended by a quorum of governing body.
AGO 2010 No. 9 – The OPMA requires that notice be properly given of a meeting of the governing body, and concludes that this requirement is not satisfied by notice given for a meeting of a standing committee of a city council as a governing body, where a quorum of members of the city council attend the meeting and take action as defined in the act, such that a meeting of the city council as a governing body takes place.
Video or Sound Recordings at Meetings
Video or sound recordings are allowed.
AGO 1998 No. 15 – A governing body does not have authority to ban video or sound recording of a meeting required to be open under the Act; it may regulate recording only to the extent necessary to preserve order at the meeting and facilitate public attendance.