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What’s the Difference Between a Closed Session and an Executive Session?

October 25, 2012  by  Joe Levan
Category:  Open Public Meetings Act

Although the terms “closed session” and “executive session” are used by some to refer to the same thing, there is a significant distinction between the two types of sessions, and I think it’s important to understand that distinction to avoid confusion.

The term “executive session” is used explicitly in the Open Public Meetings Act (OPMA), chapter 42.30 RCW, to refer to situations in which a governing body, as part of a regular or special meeting, can meet privately during that public meeting to discuss certain topics. RCW 42.30.110(1) sets forth the topics that can be discussed in executive session. If the topic to be discussed is not one of those specified in RCW 42.30.110(1), the governing body cannot discuss that topic in executive session.

In contrast, there is a different type of meeting set forth under RCW 42.30.140 to which “this chapter” (meaning the OPMA) does not apply. In other words, these types of meetings – which I refer to as “closed sessions” – are explicitly allowed by statute to occur without complying with OPMA requirements, such as public and media notice. Although there are only four types of closed sessions described under RCW 42.30.140, two of these types are fairly common and should be familiar to many local government elected officials and employees.

For those local governments that have union employees, RCW 42.30.140(4) provides that the requirements of the OPMA do not apply to collective bargaining sessions with employee organizations. Such sessions in this context include contract negotiations, grievance meetings, and discussions relating to the interpretation or application of a labor agreement. Additionally, the requirements of the OPMA do not apply to:

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.

Closed sessions are also allowed under RCW 42.30.140(2) for:

That portion of a meeting of a quasi-judicial body which relates to a quasi-judicial matter between named parties as distinguished from a matter having general effect on the public or on a class or group.

This provision for closed sessions would apply typically only to deliberations by the hearing body regarding quasi-judicial matters because most quasi-judicial hearings are, by statute, public hearings. This provision would apply, for example, when a city council is the body that considers appeals of land use determinations made by a city’s hearing examiner and the council conducts deliberations regarding whether to uphold or modify the hearing examiner’s decision.

Although there is not a definition of “quasi-judicial” that applies in all contexts, guidance is provided, for example, in RCW 42.36.010, which defines quasi-judicial proceedings in the land use context, in relevant part, as those that are conducted by a decision-making body “which determine the legal rights, duties, or privileges of specific parties in a hearing or other contested case proceeding.” I think RCW 42.36.010 is helpful in understanding the concept of quasi-judicial proceedings more broadly.

Another situation in which closed sessions are allowed is in the context of licensing or permitting of business and professional activities.RCW 42.30.140(1) provides that the requirements of the OPMA do not apply to:

proceedings concerned with the formal issuance of an order granting, suspending, revoking, or denying any license, permit, or certificate to engage in any business, occupation, or profession or to any disciplinary proceedings involving a member of such business, occupation, or profession, or to receive a license for a sports activity or to operate any mechanical device or motor vehicle where a license or registration is necessary.

However, local governing bodies are, for the most part, not likely to be involved with such activities.

RCW 42.30.140(3) describes the remaining type of closed session proceeding for which the requirements of the OPMA do not apply. Under RCW 42.30.140(3), a closed session can be held for “[m]atters governed by chapter 34.05 RCW, the Administrative Procedure Act.”  But, because the Administrative Procedure Act (APA) applies only to state agencies and does not apply to local governing bodies (see Riggins v. Housing Auth. of Seattle, 87 Wn.2d 97, 100 (1976)), a local governing body would not hold a closed session under this provision.

In summary, there are significant differences between “executive sessions” conducted under RCW 42.30.110 and what I refer to as “closed sessions” under RCW 42.30.140. The key difference is that the notice and other requirements of the OPMA do not apply to closed sessions conducted pursuant toRCW 42.30.140. Understanding this distinction is important not only for local government officials and employees, but also for members of the public in order to avoid confusion, especially regarding closed sessions.

MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.

About Joe Levan

Joe served as an MRSC Legal Consultant and Legal Manager. He 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. He no longer works for MRSC.



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