While the presiding officer, legal counsel, or staff can recommend or request an executive session, a majority of the governing body makes the final decision whether to have one.

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No. A governing body can amend its agenda during a regular meeting. That includes adding an executive session when allowed by statute.

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Yes. But RCW 42.30.080 would prevent the governing body from taking final action on a matter that was discussed in executive session when the body reconvenes the open session, unless that action was already on the published agenda. For example, if a proposed sale of agency property was already on the agenda for the special meeting, the agency could go into executive session to discuss the minimum price at which it would be sold (if public discussion is likely to cause a decrease in price). Then it could reconvene in open session and vote to sell the property. If the sale was not on the published agenda, the body could still go into executive session to discuss the sales price. But final action could not take place at that meeting.

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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, because it is the council’s meeting, the decision about who can attend is ultimately made 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, the agency’s attorney must be present (RCW 42.30.110(1)(a)(i)).

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) says that the city manager may: “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 executive officers, such as county executives or administrators or the chief executive officer for other agencies, to attend. 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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Depending on the subject matter, a member of a governing body that has a conflict of interest may need to be excluded from an executive session. For example, if the member is a plaintiff in a lawsuit against the agency, their attendance in an executive session could reveal privileged information. Therefore, the member should be excluded from the executive session.

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An attorney is required to be present when discussing infrastructure and security of computer and telecommunications networks (RCW 42.30.110(1)(a)(ii)), or litigation, pending litigation, or legal risks of a current or proposed action (RCW 42.30.110(1)(i)). In both cases, an executive session is only allowed when “public knowledge regarding the discussion is likely to result in an adverse legal or financial consequence to the agency.”

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Probably. RCW 42.30.110(1)(g), authorizes an executive session "[t]o evaluate the qualifications of an applicant for public employment [...]." While the statute does not specifically allow developing interview questions to be done in executive session, there is an argument that doing so is part of the evaluation process.

Additionally, MRSC’s position is that appointed volunteers are neither "elected officers" nor "public employees," therefore none of the executive session provisions would apply to consider qualifications of appointees for volunteer positions.

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No. RCW 42.30.110(1)(h) states that an executive session is appropriate:

To evaluate the qualifications of a candidate for appointment to elective office. However, any interview of such candidate and final action appointing a candidate to elective office shall be in a meeting open to the public; […]

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Yes. While there is some case law to the contrary (Miller v. Tacoma (1999)), MRSC takes the position that RCW 42.30.110(1)(g), which authorizes an executive session “[t]o evaluate the qualifications of an applicant for public employment […],” authorizes meeting in executive session to interview applicants for a nonelected appointive office or employment based on the notion that interviewing comes within the concept of evaluating qualifications.

MRSC’s position is that appointed volunteers are neither "elected officers" nor "public employees," therefore none of the executive session provisions would apply to consider qualifications of appointees for volunteer positions.

When the appointed position is filled by contract, such as one for legal services, the statute is not as clear. RCW 42.30.110(1)(g) specifically says “public employment” and RCW 42.30.110(1)(d) only allows an executive session “to review negotiations on the performance of publicly bid contracts when public knowledge regarding such consideration would cause a likelihood of increased costs.” Since legal services contracts do not need to be publicly bid, RCW 42.30.110(1)(d) does not apply. MRSC believes that a reasonable interpretation of the statute allows an agency to treat a position that is traditionally filled by a public employee, but could be filled by a contracted one, as if it were “public employment” for purposes of evaluating the qualifications in executive session.

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No. RCW 42.30.060(2) prohibits secret voting. And, RCW 42.30.110(1)(g) and 42.30.110(1)(h) both require final action appointing someone to be in open session. While these provisions do not specifically talk about “narrowing down” the applicant pool, MRSC’s position, based on case law, is that these three provisions prohibit narrowing down the applicant pool. In Miller v. Tacoma (1999), the Supreme Court addressed the Tacoma City Council's use of a “straw poll” in executive session. The Court said:

Here the council conducted a secret ballot. This did not weigh or evaluate the qualifications of the applicants but identified a consensus candidate for appointment to the planning commission. As such, these secret ballots constituted “action” beyond mere evaluation of the candidates’ qualifications and therefore fell outside the scope of the RCW 42.30.110(1)(g) exception.

The governing body must reconvene in open session to vote to narrow the pool.

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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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Based on due process concerns, MRSC’s position is that a respondent to a complaint should be allowed to attend an executive session where the governing body is receiving or evaluating a complaint against them. However, if the officer or employee asks for a public hearing or a meeting open to the public, the agency is required to do so (RCW 42.30.110(1)(f)). The respondent can be excluded when the governing body is deliberating on whether the complaint should be sustained. But any final decision on the complaint must be made in open session.

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Yes. RCW 42.30.110(b) allows an executive session “[t]o consider the selection of a site or the acquisition of real estate by lease or purchase when public knowledge regarding such consideration would cause a likelihood of increased price.”

The agency needs to be ready to articulate why a public discussion would cause a likelihood of increased price. For example, if the seller knows the maximum amount the agency has budgeted for the purchase, they may be unwilling to negotiate for less than that amount.

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Yes. RCW 42.30.110(c) allows an executive session “[t]o consider the minimum price at which real estate will be offered for sale or lease when public knowledge regarding such consideration would cause a likelihood of decreased price. However, final action selling or leasing public property shall be taken in a meeting open to the public.”

Agencies should be careful about discussing the sale of property in executive session. The Washington State Supreme Court interpreted this statute in Columbia Riverkeepers v. Port of Vancouver (2017). The Court narrowly defined the purpose of the minimum-value exception as only protecting the government agency’s bottom line/backstop bargaining position on price. It is not meant to allow the agency to negotiate the best possible price and does not protect any and all aspects of the negotiating position.

To the extent that any factor may potentially impact the agency’s bottom-line price, that factor must first be discussed in open session without reference to the specific dollar impact on the bottom-line price. After this public discussion has occurred, the governing body may go into executive session but only to discuss how this factor will impact the bottom-line price. 

For a more detailed analysis, see MRSC’s blog post on this case, The Supreme Court Narrowly Construes the “Minimum-Value” Executive Session Exception to the OPMA.

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Technically, yes, but this is a trick question. RCW 42.30.140(4)(a) exempts from the OPMA:

 [c]ollective bargaining sessions with employee organizations, including contract negotiations, grievance meetings, and discussions relating to the interpretation or application of a labor agreement; or (b) that portion of a meeting during which the governing body is planning or adopting the strategy or position to be taken by the governing body during the course of any collective bargaining, professional negotiations, or grievance or mediation proceedings, or reviewing the proposals made in the negotiations or proceedings while in progress.

So, members of the public can be excluded from a “closed” session related to certain parts of collective bargaining, but it is not an “executive” session under RCW 42.30.110 since the session is technically not subject to the OPMA.

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No. RCW 42.30.140(4)(a) only exempts:

[c]ollective bargaining sessions with employee organizations, including contract negotiations, grievance meetings, and discussions relating to the interpretation or application of a labor agreement; or (b) that portion of a meeting during which the governing body is planning or adopting the strategy or position to be taken by the governing body during the course of any collective bargaining, professional negotiations, or grievance or mediation proceedings, or reviewing the proposals made in the negotiations or proceedings while in progress.

Voting on the agreement is still subject to the OPMA.

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No. RCW 42.30.060 prohibits secret ballots. This includes “straw polls.”

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No. The Code of Ethics for Municipal Officers prohibits disclosure of “confidential information gained by reason of the officer’s position.” See RCW 42.23.070(4). This confidentiality requirement is also supported by an Attorney’s General’s Opinion, AGO 2017 No. 5, which concludes that participants in an executive session have a duty to hold in confidence information they obtain, if the information is within the scope of the statutorily authorized purpose of the executive session.

Although the statute does not provide specific guidance on this issue, we believe that the statute does not prohibit a person who attended an executive session from sharing information obtained in that session with other officers or employees of the agency. AGO 2017 No. 5 applies the definition of “confidential information” from Chapter 42.52 RCW. It says that, for purposes of RCW 42.23.070(4), the term “confidential information” means: “(a) specific information, rather than generalized knowledge, that is not available to the general public on request or (b) information made confidential by law.” See RCW 42.52.010(5). Confidential information from an executive session that is shared with staff is not available to the general public. Confidential information that is shared with staff should be limited to that information necessary for business purposes, and staff should be advised of the need to treat that information as confidential.

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Technically, yes. There is no legal prohibition for recording an executive session. However, 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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