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Executive Sessions 101


January 29, 2018 by Paul Sullivan
Category: Legislative Body

Executive Sessions 101

At MRSC, we get many questions regarding executive sessions, and this blog will address some of the more common ones.

Let’s dive right into it.

What is an executive session? The term “executive session" is not defined in the Open Public Meetings Act (OPMA), but the term is understood to mean that part of a regular or special meeting of a governing body closed to the public. 

When can an executive session be called? An executive session can only be held during a regular or special meeting and only for a purpose identified in RCW 42.30.110(1)(a)-(n).  A meeting may be held for the sole purpose of having an executive session.

Who can attend? The presiding officer and members of the governing body may attend. Others can as well, if invited. For an executive session to discuss litigation or potential litigation, legal counsel must be present. RCW 42.30.110(1)(i).

How is an executive session started? The presiding officer must publicly announce the executive session to those attending the open meeting, stating its statutorily-authorized purpose and when the executive session will end. If more time is needed, the presiding officer announces the new time the executive session will end. If the session ends early before the stated end time, the governing body may not reconvene in open session until the time that was stated.

What can be discussed? The statutes are very specific (see RCW 42.30.110(1)(a)-(n)) and provide the only subjects allowed for discussion.  These include:

  • Consideration of the selection of a site or the acquisition of real estate by lease or purchase when public knowledge would cause a likelihood of increased price.
  • Consideration of the minimum price at which real estate will be offered for sale or lease when public knowledge would cause a likelihood of decreased price.
  • Receipt and evaluation of complaints or charges against a public officer or employee. However, upon the request of the officer or employee, a public hearing or a meeting open to the public must be conducted upon the complaint or charge.
  • Evaluation of the qualifications of an applicant for public employment or review of the performance of a public employee. However, discussion of salaries, wages, and other conditions of employment to be generally applied may only occur in a meeting open to the public.
  • Evaluation of the qualifications of a candidate for appointment to an elective office. Any interview of candidates and the final appointment must be in a meeting open to the public.
  • Discussion with legal counsel of enforcement actions, litigation, or potential litigation in which the agency is, or is likely to become, a party.

Must an attorney be present at all executive sessions? No, not unless the subject is litigation, potential litigation, or an enforcement action.

Can final action be taken at an executive session? No final action can be taken since the purpose of an executive session is to allow the discussion of a subject, not to take final action. However, in some situations, such as when discussing the price at which property can be purchased or sold or whether a lawsuit should be initiated or settled, preliminary direction may be required to accomplish the purpose of the session. Final action must be taken at an open session.

Are there other instances that allow a closed meeting? There are three situations applicable to local governments for which the OPMA does not apply: 

  1. Proceedings concerned with the formal issuance of an order granting, suspending, revoking, or denying any license, permit, or certificate to engage in any business or occupation;
  2. That portion of a meeting of a quasi-judicial body relating to a quasi-judicial matter between named parties, and;
  3. Collective bargaining sessions with employee organizations, including contract negotiations, grievance meetings, and discussions relating to the interpretation or application of a labor agreement or to the planning or adoption of the strategy or position to be taken during collective bargaining, professional negotiations, or grievance or mediation proceedings, or reviewing the proposals made in the negotiations or proceedings while in progress. 

These situations are exempt from the OPMA altogether and no open meeting is required (see RCW 42.30.140).

What happens if there is a violation? Members of a governing body who attend a meeting where action is taken in violation of the OPMA are subject to a $500 penalty for a first violation, if they attend with knowledge that the meeting is in violation of the Act. A subsequent violation results in a $1,000 civil penalty.  In addition, the government may be liable for all costs, including reasonable attorney fees. Actions in violation of the Act are null and void (see RCW 42.30.120).

Can information from the session be shared with others? No, it should not be. To share confidential information obtained as result of a person’s office could result in a fine and removal from office.  See RCW 42.23.070(4) and RCW 42.23.050.  Also see the blog Confidentiality and Executive Sessions.

Questions? Comments?

If you have questions about this or other local government issues, please use our Ask MRSC form or call us at (206) 625-1300 or (800) 933-6772. If you have comments about this blog post, please comment below or email Paul Sullivan at psullivan@mrsc.org.

About Paul Sullivan

Paul has worked with local governments since 1974 and has authored MRSC publications on local elections, ordinances, and general local government operation. He also provides training on the Open Public Meetings Act.

VIEW ALL POSTS BY Paul Sullivan

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