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Open Public Meetings Act FAQs

Below are some of the common and frequently asked questions we have received regarding the Open Public Meetings Act (OPMA) in Washington State. To view the answer to a question, simply click on the question.

If your question is not addressed here or you wish to contact one of our staff attorneys directly, please use our Ask MRSC form or call 1-800-933-6772 (toll-free) or (206) 625-1300.

For an overview of all the OPMA-related information on our website, see our page Open Public Records Act.

FAQs on Public Meetings During COVID-19 Outbreak

For answers to frequently asked questions related to public meetings during the COVID-19 pandemic and in response to the governor's emergency orders, see MRSC's COVID-19 FAQs on Public Meetings and Public Hearings.


Is a Meeting Subject to the OPMA?

Are all gatherings of members of the governing board considered a “meeting?”

No, not all gatherings of members of the governing board are “meetings.” For example, RCW 35A.12.120 requires that:

At all meetings of the council a majority of the councilmembers shall constitute a quorum for the transaction of business, but a less number may adjourn from time to time and may compel the attendance of absent members in such manner and under such penalties as may be prescribed by ordinance.

So, until there’s a quorum, there’s no “meeting.” For additional information on other requirements, see our Open Public Meetings Act Basics page.

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When is a governing body taking “action?”

A governing body is taking "action" (RCW 42.30.020(3)) when a quorum of that body conducts the official business of a public agency, which includes but is 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.

Washington courts as well as the Attorney General’s Office have defined “action” very broadly.

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Are social gatherings or other organizations' meetings subject to the OPMA?

RCW 42.30.070 states that:

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.

Therefore, if a quorum of members of a governing body attending a social gathering do not conduct “the official business of a public agency,” it is not subject to the OPMA. Similarly, another organization’s meeting may or may not involve the official business of the public agency. 

For example, a meeting of the chamber of commerce that is set up to talk about what local businesses can do to boost economic development may be ok. But if the chamber’s meeting is convened specifically to discuss how the agency can help with economic development, the members of the governing body may find themselves receiving public testimony and discussing public business. This is “action” under the OPMA.        

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Is a tour of a new business a public meeting subject to the OPMA?

Probably, if a quorum (majority) of the governing body takes the tour. In RCW 42.30.020(3) “action” is defined broadly to include “deliberations, discussions, considerations, reviews, [and] evaluations,” as well as final actions. While passive receipt of information without discussing official business may not be considered a public meeting, it is hard to imagine that there would be no conversations or questions asked while on the tour.

Assuming the tour is a public meeting, it would have to be noticed as a special meeting and members of the public would have to be allowed to travel with the governing body and attend the tour. One option is to have fewer than a quorum of the governing body take the tour. And, while you could schedule multiple tours, each with fewer than a quorum, members would have to take care to not have discussions between tour groups until they were in an open public meeting.

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If the governing body attends a training session, is it a public meeting subject to the OPMA?

Generally, no. RCW 42.30.070 states that:

[i]t 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.

Additionally, per Citizens Alliance v. San Juan County (2015), passive receipt of emails or other one-way forms of communication are not participation in a meeting; such passive receipt of information does not demonstrate the necessary intent to meet.

An attorney general opinion (AGO 2006 No. 6) concluded that a quorum of a city or county council attending a meeting that was not called by the council is not a meeting of the council and therefore not subject to the OPMA. However, if, while at the training the quorum of councilmembers discusses city business, that would be a violation of the OPMA. In RCW 42.30.020(3) “action” is defined broadly to include “deliberations, discussions, considerations, reviews, [and] evaluations”; therefore, this would encompass discussions among the quorum that occur while they attend a training.

If the training session is limited to the agency, and a quorum of the governing body attends, it would be prudent to treat it as a meeting subject to the OPMA because it is likely that the members would be discussing and considering agency business.

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Meeting Procedures

What can I do at a special meeting?

At a special meeting, you can do almost everything that you can do at a regular meeting, unless your local code or rules say otherwise (with the exception of towns, which may not pass a resolution or order for the payment of money at any other than a regular meeting. See RCW 35.27.270).

But, RCW 42.30.080(3) says that you cannot take “final disposition” on an item that was not posted on the on the special meeting agenda. While “final disposition” is not defined in the statute, RCW 42.30.020(3) defines "final action" as a collective positive or negative decision, or an actual vote “upon a motion, proposal, resolution, order, or ordinance.”

Therefore, you cannot vote on or take a “straw poll” on a new matter brought to the table in a special meeting. Why? Because “final action” includes any collective decision on a “motion, proposal, resolution, order, or ordinance” and final action cannot be taken on a matter not listed on the original agenda.

So, can a governing body give “interim guidance” to the executive or staff such as asking the executive or staff to provide additional information, on a matter that was added to the agenda of a special meeting? Probably not. The better practice is for each member of the governing body to express their concerns during the meeting and staff can then decide what needs to be done to bring the item back to another meeting.

However, at a special meeting you can amend the agenda to discuss something not on the original agenda and go into executive or closed session (if appropriate) to discuss something not on the original agenda.

Some actions such as granting franchises cannot be adopted until a specific amount of time has passed after introduction. See RCW 35.23.251 for second class cities, RCW 35.27.330 for towns, RCW 35.17.220 for cities operating under the commission form of government, and RCW 35A.47.040 for code cities. RCW 36.55.040 and RCW 80.32.010 deal with franchises in counties. So, if you introduce a franchise agreement at a special meeting you can discuss it but cannot adopt it at the same meeting.

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What can we do if someone is causing a disturbance during the meeting?

The law: RCW 42.30.050 allows for the removal of persons whose conduct prevents the “orderly conduct of the meeting,” clearing the room and continuing the meeting, and adjourning the meeting or continuing at a different location.

The test: The conduct must actually disrupt the meeting from going forward. Because council meetings are considered limited public forums, the content of a person’s speech is often not a good enough reason to remove them.

Examples of conduct that courts have considered to be disruptive:

  • continuing to talk over the allotted time
  • continuing to address items not on the agenda

Examples of conduct that courts have considered not to be disruptive:

  • a silent “Nazi” salute
  • “mere” use of profanity (including calling the mayor a “racist pig”)
  • personal attacks on members of the governing body or staff

The process: The presiding officer should clearly tell the person(s) that is(are) disrupting the meeting what conduct they consider to be disruptive, ask them to stop, and warn them that if the conduct continues the person will be asked to leave, the room will be cleared, or the meeting will be adjourned. If the conduct continues, the presiding officer can ask the sergeant-at-arms (if there is one), security, or the police to remove the person or clear the room. Of course, doing this can create a different set of problems that are outside the scope of this FAQ.

If the person cannot be removed, or the public refuses to clear the room, the process to adjourn the meeting in RCW 42.30.090 is:

  1. First, the governing body must vote to adjourn the meeting and vote on the new location; the presiding officer cannot do this unilaterally.
  2. Second, the governing body must provide the media in attendance with notice of the new location; the media has a right to attend unless they were part of the disruption.
  3. Third, the governing body must post an order of adjournment, citing the new time and location, at the doorway of the location of the disrupted meeting.
  4. Fourth, the governing body may only take final action on items listed on the agenda for the adjourned meeting.
  5. Finally, the governing body is authorized to adopt procedures for allowing members of the public into the reconvened meeting.

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If a meeting is conducted by telephone or other remote software, does there have to be a physical location?

MRSC has historically advised that the members of the governing body can all meet remotely, but there must a physical location open to the public that allows them to hear and participate in the meeting. MRSC’s position was based on that of the Washington State Attorney General’s Office. AGO 2017 No. 4 harmonizes allowing the governing body to meet remotely (Wood v. Battle Ground Sch. Dist. (2001)) with the OPMA’s requirements to permit attendance at a meeting (RCW 42.30.030), and to post the location of a meeting (RCWs 42.30.070, 35A.13.170; 35A.12.110, 35A.12.120, 35.32.080; 36.32.090; 52.14.090; 52.26.080).

However, during the COVID-19 emergency some jurisdictions indicated that, at least during a declared emergency, the OPMA does not require them to provide a physical location. At least one non-charter optional code city has determined that Title 35A RCW does not require a specific location, and that the OPMA’s requirements can be met without there being a physical location. That city amended its rules to require all meetings to be held virtually for the duration of the current emergency.

It remains to be seen whether remote meetings will become a best practice for agencies after the emergency ends. If so, agencies will have to manage remote meetings while considering issues of social equity (potential attendees may not have access to the technological resources necessary) as well as accessibility for persons with disabilities.

Note: See MRSC’s COVID-19 Resources Frequently Asked Questions and Operations and Personnel Issues pages for additional information on conducting meetings during the COVID-19 pandemic.

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Quorum

Can the presence of an “ex-officio” member of a committee of the governing body transform the committee meeting into a meeting of the entire governing body?

Yes. Even though not all committees are subject to the Open Public Meetings Act (see Citizens Alliance v. San Juan County (2015) and the MRSC blog post, State Supreme Court Says Advisory Committees Are Not Subject to the OPMA), all meetings of committees of the governing body and the governing body itself are (with certain exceptions). So, agencies need to be careful how they count membership on a committee.

An “ex-officio” member is one who is appointed based on a position they hold instead of being appointed as an individual. Unless the enabling legislation or the rules of the body say otherwise, an “ex-officio” member is a voting member of the committee and counts towards the quorum of the committee. (Roberts Rules of Order generally defines a quorum as the minimum number of voting members who must be present to conduct the business of the group).

Example: You have a five-member board, and your rules say the chair is an ex-officio member of all board committees. The board intends to create a two-member ad-hoc committee consisting of members other than the chair. But, because of the standing rule the chair’s presence on committee creates a quorum of the entire governing body.

If your agency wants a rule that appoints ex-officio members, it should ensure that the total number of members on the committee (including the ex-officio member) is fewer than that required for a quorum of the entire body.

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What if I lose my quorum during a meeting?

If you lose the quorum, the remaining members must adjourn the meeting. RCW 35A.12.120  (Code cities) and RCW 36.32.010 (counties) both require a majority of the council to be present to conduct business.

Although the meeting must be adjourned, the remaining members may continue to discuss matters among themselves and with staff (Eugster v. Spokane (2005); Loeffelholz v. CLEAN (2004)) unless it is a quasi-judicial hearing, in which case the remaining members cannot continue to meet on the issue.

The minutes should be clear that the meeting was adjourned. The remaining members cannot take any final action. And, if the remaining members want notes taken those notes should clearly say that they are not official minutes. The remaining members should not discuss what happened after adjournment with the members who were not present; to do so could constitute a “serial meeting” in violation of the OPMA.

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What is a serial meeting?

A serial meeting, sometimes referred to as a “walking” meeting, happens when fewer than a quorum of the governing body takes “action” at one time, but that action is then repeated in a way that eventually involves a quorum of the governing body. It does not matter if the serial meeting happens in person, or by electronic means such as email or social media posts.

It is not a serial meeting if one member of a governing body shares information with the rest of the body. “Passive receipt” of information is allowed.

Examples using a scenario where there are five board members (1-5), so three members is a quorum:

  • Board member 1 talks to board member 2 about agency business. 2 talks to 3 and tells 3 what 1 said. 3 talks to 4 and tells 4 what both 1 and 2 said. You now had a “serial” meeting because a quorum of the council is discussing agency business.
  • Board director puts a draft policy on the agency’s SharePoint site and grants permission for all five board members to edit the document. (SharePoint allows for simultaneous editing of documents and real-time chat). If at least three members comment, or propose edits, you’ve had a serial meeting.
  • Board member 1 posts on their personal Twitter page about their intent to vote in favor of a proposed action. The next day board member 2 retweets commenting that they oppose the action, and tags board members 4 and 5. Board member 4 responds that afternoon saying they support the member and tags board member 3. This now became a conversation among a quorum of the board members about agency business, and is a serial meeting.

Agencies can help avoid a serial meeting over email by adopting rules prohibiting members of the governing body from communication with a quorum of the body. Instead, route emails and replies to staff and then the matter can be discussed at a future open meeting. Also, putting the addresses of the member in the “blind carbon copy” field of most email programs will keep that program from replying to all the members. For social media, consider adopting rules that prohibit members of the governing body from commenting on posts made by other members; especially if your agency has official media pages for the members. See MRSC’s blog post, Tips for Avoiding OPMA Violations, for other helpful suggestions.

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Committees and Advisory Boards

When is an advisory board "acting on behalf" of the governing body (and therefore subject to the OPMA)?

An advisory board is "acting on behalf" of the governing body, when it exercises actual or de facto decision-making authority for a governing body. This happens when the board is formally given decision-making authority or when its governing body, routinely or without discussion, merely rubberstamps the committee’s recommendations. 

The Washington State Supreme Court looked at this issue in Citizens Alliance v. San Juan County (2015) when it ruled that committees that serve a purely advisory function are not subject to the OPMA. For more details about the case, see MRSC’s blog post, State Supreme Court Says Advisory Committees Are Not Subject to the OPMA.

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Can a member of the governing body attend a meeting of a committee of the governing body if they are not assigned to that committee?

Yes. Anyone, including members of the governing body, can attend an open meeting of a committee of a governing body. However, if the member’s attendance would create a quorum of the governing body their attendance may convert the committee meeting to a meeting of the entire governing body.

Whether it becomes a meeting of the entire governing body may depend on whether the non-committee member participates in the committee meeting. Since passive receipt of information by a member of the governing body does not violate the OPMA, merely attending a meeting when the person is not on the committee may be allowed under the OPMA. But, it certainly will raise the issue of whether a violation of the OPMA has occurred.

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Executive / Closed Sessions

What is the difference between an executive session and a closed session?

An executive session is part of a public meeting, but members of the public can be excluded under limited circumstances (RCW 42.30.110). The presiding officer must announce the purpose for the executive session and the time it will be concluded. See MRSC’s Executive Session Procedures Checklist for more detail. 

A closed session is not part of a public meeting and none of the requirements of Chapter 42.30 RCW, including the notice requirements, apply (RCW 42.30.140).

Matters on which a closed session may be held and that are not subject to the OPMA include actions of the governing body related to:

  • licensing businesses, or disciplinary actions related to those licenses;
  • quasi-judicial matters such as a parcel rezone application;
  • matters covered by the Administrative Procedures Act (Ch. 34.05 RCW); and,
  • Actions related to collective bargaining agreements, including developing the agency’s negotiating position, conducting the bargaining, or reviewing proposals.

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Who decides who gets to attend an executive session?

Because the executive session is part of a meeting of the governing body, that body decides who attends the executive session. The presiding officer of the governing body usually makes the initial determination. However, that decision can be overruled by a majority vote of the governing body.

All members of the governing body are entitled to attend an executive session unless there is some legal conflict of interest, such as if a member of the governing body has sued that body.

If the body is discussing litigation or potential litigation (RCW 42.30.110(1)(a)(i)) the agency’s attorney must be present.

In a mayor-council city, the mayor presides over the meetings of the council and has the right to attend all meetings, including executive sessions (absent a conflict of interest). In a council-manager city, the council can meet without the city manager in executive session (RCW 35A.13.080(3): “[…] attend all meetings of the council at which [their] attendance may be required […]”). RCW 35A.13.120 requires that council work through the city manager when dealing with staff, “except for the purpose of inquiry,” so technically the council could include staff but not the city manager in an executive session.

There is no specific statutory authority for county executives or administrators or for the chief executive officer for other agencies. Whether those officers may attend an executive session will depend on either the agency’s rules or whether they are invited to do so by the agency’s governing body.

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Can an executive session be recorded?

MRSC recommends against recording executive sessions and against taking minutes of those sessions. Statements of members of the governing body that are made during properly convened executive sessions are required by law to be kept confidential (AGO 2017 No. 5). While matters discussed in executive session are confidential, there is no automatic exemption under the Public Records Act for minutes or recordings of the executive sessions.

For further information, see our blog post on Confidentiality and Executive Sessions.

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Can we conduct interviews in executive session?

RCW 42.30.110(1)(g) allows an agency to go into executive session for the evaluation of candidate qualifications and for candidate interviews for applicants for public employment (this includes volunteers and members of advisory boards). If the position is for appointment to an elective office, the OPMA requires interviews be conducted during a public meeting (RCW 42.30.110(1)(h)). However, the agency may evaluate the qualifications for an appointee to an elected position in executive session.

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Can we discuss the city manager’s performance evaluation/contract renewal/compensation in executive session?

Yes. RCW 42.30.110(1)(g) allows an executive session to “review the performance of a public employee” including the city manager. But, final decisions on approving the final version of the evaluation, amendments to the employment contract, and changes in compensation must take place during an open session.

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Last Modified: November 18, 2020