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When are Meetings of Committees of a Governing Body Subject to the Open Public Meetings Act?


May 15, 2014 by Joe Levan
Category: Open Public Meetings Act

[Update: the state Supreme Court has now issued its decision in this case. See State Supreme Court Says Advisory Committees Are Not Subject to the OPMA, 10/6/2015] A significant issue that can be challenging under the Open Public Meetings Act (OPMA), chapter 42.30 RCW, is determining what it means for a committee to “act on behalf of” the governing body. This is important because if, for example, a committee of a city council meets and “acts on behalf of” the council at such a meeting, that meeting is subject to the notice and other requirements of the OPMA. See definition of "governing body" in RCW 42.30.020(2).

You may wonder: if a governing body, such as a city council or a county or special district board of commissioners, establishes a committee that includes one or more of its members, either on a long-term or ad hoc basis, isn’t it always the case that such a committee “acts on behalf of” the governing body? The short answer is “not necessarily," because there are situations in which such a committee can lawfully meet and not be subject to the requirements of the OPMA.

This issue was addressed directly by Division I of the Washington State Court of Appeals in a recent decision, Citizens Alliance for Property Rights Legal Fund vs. San Juan County, No. 70606-3-I (April 28, 2014). Unfortunately, that decision is “unpublished,” which means it may not be cited in a court as legal authority. [Update: Subsequent to this blog post, the Washington State Court of Appeals decided to publish this decision, which means that it can be relied upon as legal authority. See my post of June 13, 2014 – Update: Washington Court of Appeals Publishes Important OPMA Decision Relating to Committees.] However, I think the analysis provided by the court and the legal authority the court relies upon shed light on this important topic. (And it's possible a motion will be made, and granted, to publish this decision.) Below are key points I think are noteworthy related to what it means for a committee to “act on behalf of” the governing body. Significantly, the court adopted the reasoning of a Washington State Attorney General Opinion, AGO 1986 No. 16, on this issue.

As I interpret the court’s analysis, a meeting of a committee of a governing body is subject to the requirements of the OPMA if the committee:
  • Includes a majority or more of the governing body; or
  • Conducts hearings; or
  • Takes testimony or public comment; or
  • Exercises actual or de facto decision making authority for the governing body; or
  • Was established by the governing body and delegated with some of the governing body’s authority.

In the specific situation in Citizens Alliance for Property Rights, the court addressed the plaintiff’s contention that the committee at issue (which the court referred to as the “CAO Team”) was acting on behalf of the governing body because, during committee meetings, “ideas and policies are brought forward, discussed, narrowed and discarded and approaches are formulated for making presentations of subcommittee work to the entire [County] Council.” The court concluded that, even viewed in the light most favorable to the plaintiff, the CAO Team’s role was advisory or informational, and there was insufficient evidence to establish that the CAO Team exercised actual or de facto decision making authority. The court found, therefore, that the team’s gatherings were not “meetings” under the OPMA.

To summarize, and in the context of the bullet points above, under the court's reasoning a meeting of a committee of a governing body isn’t subject to the requirements of the OPMA if the committee:
  • Includes less than a majority of the governing body; and:
    • Isn't conducting a hearing; and
    • Isn't taking testimony or public comment; and
    • Wasn't delegated with some of the governing body’s authority; and
    • Isn't exercising actual or de facto decision making authority. Activities such a committee could engage in and not implicate the OPMA include:
      • Merely deliberating about the making of policies or rules; or
      • Merely providing advice or information to the governing body.

It’s unfortunate that this decision is unpublished because I think the court’s analysis helps to clarify a key issue under the OPMA that causes confusion for local governments and the public. That said, if in doubt, I recommend that local agencies presume that meetings of committees of a governing body are subject to the requirements of the OPMA, unless it’s clear that such a committee isn’t exercising actual or de facto decision making authority on behalf of the governing body.

As a practical matter, we have opined, for example, that where a committee of the governing body, such as a budget committee, merely provides advice or information to the governing body, it’s arguably not exercising any actual or de facto decision making authority. However, if the committee makes recommendations that are routinely followed, or “rubberstamped,” by the governing body or where the committee’s advice or recommendation is a prerequisite to action by the governing body, such a committee would be exercising de facto decision making authority that would subject the committee to the requirements of the OPMA.

 

About Joe Levan

Joe has been a municipal attorney for many years, including as an in-house city attorney, in private practice for two municipal law firms through which he provided litigation and a range of other services to several Washington municipalities, and as part of the in-house legal team for Sound Transit.

VIEW ALL POSTS BY Joe Levan

Comments

"I hope it gets published because we are stuck with 259 F.3d 996 (9th Cir. 2001) BRIAN CLARK, DBA VISIONS, PLAINTIFF-APPELLANT v. CITY OF LAKEWOOD, DEFENDANT-APPELLEE Which did hold that taking public comment and discussing regulation of topless bars by a multi-member public citizen advisory committee invalidated a subsequently adopted city ordinance due to the earlier violation of the OPMA. Although that federal holding has been honored mostly in the breech by State courts, it is still a powerful and "on-point case. Dan Heid will no doubt comment on that case. That was another adult entertainment case brought by my high school classmate, Jack Burns, who usually refers to himself at reunions, as a First Amendment lawyer."

Craig Ritchie on May 15, 2014 3:04 PM

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