2016 Legislature Adds to the Monetary Penalty for an OPMA Violation

A violation of the Open Public Meetings Act (OPMA) can result in a number of consequences, one of which is a monetary penalty for each member of a governing body who attends a meeting knowing that it is being held in violation of the OPMA. Responding, in part, to concerns that Washington State lags behind many other states regarding penalty amounts for open meetings law violations, that the amount of this penalty hasn’t changed in over 40 years, and that an increased personal penalty on officials would more effectively deter OPMA violations, the Legislature increased the existing $100 civil penalty, effective June 9, 2016, to $500 for a first violation and $1,000 for each successive violation. RCW 42.30.120, as amended by SB 6171 (Ch. 58, Laws of 2016). Note, too, that there are other consequences resulting from an OPMA violation.

But first, where does that monetary penalty go? Unlike the monetary penalties imposed for a violation of the Public Records Act, the monetary penalty assessed for an OPMA violation does not go to the party that successfully sued the public agency. Rather, the penalty goes, I presume, to the county in which the action was brought.

What other consequences result from an OPMA violation? In addition to the personal liability imposed on the members of the governing body who are found by a court to have violated the OPMA, the following consequences or potential consequences ensue for an OPMA violation:

• Any action taken at meetings held in violation of the OPMA are “null and void.” RCW 42.30.060. (Subsequent actions taken in compliance with the OPMA are, however, not also invalidated. OPAL v. Adams County, 128 Wn.2d 869, 883 (1996).)
• A person who prevails against a public agency in an action in the courts alleging an OPMA violation is awarded all costs incurred, including reasonable attorneys' fees. RCW 42.30.120.
• An OPMA violation may provide a sufficient legal basis for a recall effort against a local elected official. See, e.g., In re Recall of Lakewood City Council Members, 144 Wn.2d 583, 586 (2001).

Another potential consequence of an OPMA violation – one not spelled out in statute or case law – is an erosion of public trust in government. It is, of course, impossible to quantify that consequence, and most violations are, I think, unintentional and minor. Complying with the OPMA training requirement (see RCW 42.30.205) can help avoid such unintentional violations. Information provided on our Open Public Meetings Act webpage can also be of help.

Have a question or comment about this information? Let me know below or contact me directly at bmeinig@mrsc.org.

Image courtesy of Michael Kappel.