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When is a Committee Not a Committee under the OPMA?


April 1, 2014 by P. Stephen DiJulio
Category: Open Public Meetings Act , Open Government Advisor

By Steve DiJulio, Foster Pepper PLLC.

The Washington Open Public Meetings Act (OPMA), chapter 42.30 RCW, applies to a "governing body" as well as to a committee that "acts on behalf of" a governing body. The key definitions from the OPMA, at RCW 42.30.020, include as follows:

(1) "Public agency" means:

(a) Any state board, commission, committee, department, educational institution, or other state agency which is created by or pursuant to statute, other than courts and the legislature;

(b) Any county, city, school district, special purpose district, or other municipal corporation or political subdivision of the state of Washington;

(c) Any sub agency of a public agency which is created by or pursuant to statute, ordinance, or other legislative act, including but not limited to planning commissions, library or park boards, commissions, and agencies. . . .

(2) "Governing body" means the multimember board, commission, committee, council, or other policy or rule making body of a public agency, or any committee thereof when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment.

Under its plain terms, the OPMA applies to a meeting of a majority of a council or commission. What is less clear is whether the OPMA applies when less than a majority of a council or commission meets (e.g., the meetings of a 3 member committee of a 7 member council). The Washington Court of Appeals recently addressed this very issue in a case involving the 6 member San Juan County Council.Citizens Alliance for Property Rights v. San Juan County (April 28, 2014, unpublished). The Court considered a challenge, based on the OPMA, to San Juan County's adoption of updates to its Shoreline Master Program and Critical Area ordinances. Central to the Court's decision was the construction of the OPMA's provisions regarding committees.

Background

In 2010, the County began the update process to its Shoreline Master Program and Critical Area ordinances. Until early 2012, a County internal team, including three County Councilmembers and certain executive staff, met regularly to discuss the update. The team meetings were not open to the public. After the Prosecuting Attorney cautioned the team regarding the potential application of the OPMA, the Councilmembers discontinued the practice. Many months later, and following extensive public meetings, including over 30 meetings after the team meetings had ceased, the County adopted its Critical Area ordinances.

A citizens group challenged the ordinances, arguing that the County's earlier team meetings with three of the Councilmembers constituted illegal meetings under the OPMA. The Court rejected that argument and held that the team was not a "committee" that constituted a "governing body" subject to the OPMA.

Hearings, Testimony and Public Comment

The OPMA applies to any "committee" of a governing body, regardless of the identity of the members (elected officials, staff, or members of the public). AGO 1986 No. 16. The more important question is whether the committee performs one or more of the functions identified by the OPMA to qualify that committee as a "governing body" subject to the OPMA.

In 1983, the Legislature amended the OPMA to clarify the application of the Act to certain committees of a governing body. Laws of 1983, chapter 155, § 1. Now, the OPMA applies to any committee of a governing body "when the committee (1) acts on behalf of the governing body, (2) conducts hearings, or (3) takes testimony or public comment." RCW 42.30.020 (2) (numbering added). Accordingly, any committee or subcommittee, even if composed solely of a minority of a commission or council or composed of nonmembers of a governing body (such as a task force or ad hoc working group), is subject to the OPMA if it conducts hearings or receives testimony or public comment. See Clark v. City of Lakewood, 253 F.3d 996 (9th Cir., 2001) (city planning advisory board's task force to study adult entertainment regulation took testimony and violated the OPMA when a majority of its meetings were closed to public). The San Juan County team did not receive testimony or conduct hearings. So, that provision of the OPMA was not controlling.

Acts on Behalf of

A committee also qualifies as a "governing body" if it "acts on behalf of the governing body." RCW 42.30.020(2). The citizens group argued that the County's study team acted "on behalf of" of the County Council and was therefore subject to the OPMA's open meetings requirement. The interpretation of the phrase "on behalf of" has been debated for many years. The Washington Attorney General evaluated alternative interpretations of the phrase in AGO 1986 No. 16. There, the Attorney General applied a narrower definition and concluded that "a committee acts on behalf of the governing body when it exercises actual or de facto decision making authority for the governing body." Applying that construction, the Court held that the citizens group failed to produce evidence that the team (which included three County Councilmembers) exercised actual or de facto decision making authority for the full Council. That OPMA challenge was rejected.

Negative Quorum?

In a matter of apparent first impression for Washington courts, the citizens group also argued that the three San Juan County Councilmembers constituted a "negative quorum" that could effectively block any legislation regarding the disputed issue. The citizens group cited State ex rel. Newspapers, Inc. v. Showers, 135 Wis.2d 77, 398 N.W.2d 154 (1987). There, the Wisconsin Supreme Court held that Wisconsin's Open Meeting Law applied because four of eleven members of a governing body could block a budget ordinance. In the case of San Juan County, the three County Councilmembers could also prevent the passage of legislation. The Washington Court of Appeals declined to follow Showers, however, and applied earlier Washington court decisions that required the presence of a majority of members before there was a "governing body" subject to the OPMA. See In re Recall of Beasley, 128 Wn.2d 419, 427, 27 P.3d 878 (1996) (in recall action, no meeting of majority of school board); In re Recall of Robert, 115 Wn.2d 551, 554, 799 P.2d 734 (1990) (in recall action, no meeting of majority of town councilmembers).

Caution

The San Juan County decision is unpublished. While it provides guidance, it is not yet controlling authority. As a result, councils and commissions should be cautious about the application of the OPMA to committees, task forces and other groups that include council members or commissioners. For additional guidance, see the extensive library of OPMA materials on the MRSC website.


MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.

About P. Stephen DiJulio

P. Stephen DiJulio writes for MRSC as a Council Commission Advisor and as a Open Government Advisor.

P. Stephen DiJulio, a partner at Foster Pepper PLLC, focuses on litigation involving state and local governments, and land use and environmental law. Particular experience includes representation of jurisdictions on eminent domain, utilities (water, wastewater, storm water, solid waste systems), local improvement districts, facility siting and contractor litigation.

The views expressed in Advisor columns represent the opinions of the author and do not necessarily reflect those of MRSC.

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