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The Open Public Meetings Act and Filling Elective Office Vacancies in a City

October 31, 2012  by  Pat Mason
Category:  Open Public Meetings Act

A city council is given the authority to fill vacancies that occur in city elective offices - mayor and councilmember. This raises the issue of what a city council can do in executive session in regard to filling such vacancies and what it must do in open session.

The statute on filling vacancies in nonpartisan elective offices, RCW 42.12.070, merely provides that the remaining members of the governing body are to appoint a qualified person to fill the vacant position. (A "qualified" person is someone who would otherwise be eligible to run for elective office in the jurisdiction.) State law does not mandate a particular process that must be used in filling a vacancy in an elective office, and so each jurisdiction has flexibility in regard that process.

The Open Public Meetings Act (OPMA) in RCW 42.30.110(1)(h) allows one part of the process to fill the vacancy to be handled in executive session. It specifically provides that the council may go into executive session to "evaluate the qualifications of a candidate for appointment to elective office." The policy behind this exemption is to allow the councilmembers to freely and openly express their opinions about the qualifications of the applicants without having the applicants themselves, or the public, listening to their evaluations.

The OPMA goes on to clarify that, if the council wants to interview candidates for appointment to elective office, those interviews must be conducted in open session.

And the final vote to make the appointment and fill the vacancy must, of course, occur in open session.

A caution about this last point to keep in mind - during the process of evaluating the qualifications of the candidates in executive session, the council must take care not to take any kind of preliminary vote, even to narrow the field of candidates or even if the vote is considered a nonbinding straw vote. This point was made clear by the Washington Supreme Court in Miller v. City of Tacoma, 138 Wn.2d 318 (1999). (Although the city council in that case was properly in executive session to evaluate the qualifications of the candidates to fill an appointive office on the planning commission, the reasoning in that case applies also to meeting in executive session to evaluate the qualifications of a candidate for appointment to an elective office.) During the course of the executive session, the council in Miller conducted balloting to determine which candidate the council preferred. The council then voted to open session to actually appoint the person determined in executive session to be the consensus candidate.

The court in Miller held that "When the council conducted ballots to arrive at a consensus candidate, it went beyond the scope of RCW 42.30.110(1)(g) that allows for an executive session only to 'evaluate' candidates' qualifications." That provision for executive session permits members to discuss and consider the worth, quality, and significance of the applicants' qualifications and to express opinions on such matters, but it does not permit them to choose a candidate or conduct any kind of vote expressing preferences.

So with these considerations in mind, a city council can use an executive session as part of the process to fill a vacancy in an elective office, to evaluate the applicants' qualifications, but no more than that.

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About Pat Mason

Pat served as MRSC's Legal Manager and wrote about public records, open public meetings, and just about any other municipal legal issue. He is now retired.



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