New AGO Opinion Concludes the OPMA Allows a Governing Body to Meet via Telephone or Video Conference

On March 21, 2017, the Washington State Attorney General’s Office (AGO) issued a new opinion on the Open Public Meetings Act (OPMA), opining on whether a governing body can conduct a public meeting by telephone (or video) conference call. Any new case law or AGO opinion on the OPMA always creates somewhat of a stir for government attorneys and elected officials since guidance on the OPMA is so few and far between!

The new opinion (AGO 2017 No. 4) addresses whether a governing body can hold an open public meeting exclusively by conference call. Even though the opinion analyzes a state governing body, the AGO’s opinion applies equally to governing bodies of local governments.

The basic requirement of the OPMA is that the public shall be permitted to attend any meeting of the governing body of a public agency. RCW 42.30.030. The AGO’s opinion focused on the meaning of “attend” in the OPMA, concluding that it “requires the meeting to occur at a physical location where interested persons can be present to listen to and observe the governing body’s actions.”

The AGO then looked to whether a meeting held by telephone and video conferencing allows the public to attend the meeting, ultimately concluding that even though the OPMA does not expressly address public meetings using telecommunications technology (i.e., telephone and video conferencing), this does not prohibit such a meeting from occurring since:

[T]he OPMA is a limitation on the authority of a public agency to act, not a grant of authority. Thus, the power to hold the meeting using teleconferencing exists so long as the meeting satisfies the limits of the OPMA.

To satisfy the limits of the OPMA, the telephone or video conferencing meeting must comply with the following factors:

• The speaker phone or video must be provided at the designated meeting place and at the designated meeting time. For local agencies, this will be at the place and time set forth in the agency’s relevant ordinance, resolution, bylaws, or similar rule pursuant to RCW 42.30.070.
• The speaker phone or video must allow attending members of the public to hear all discussion, provide testimony (if testimony is required by state law or council rule), and otherwise be aware of the governing body’s steps in taking its official action.

The AGO’s opinion, of course, is given with the caveat that their conclusion is not without risk since, in the event such a meeting is found unlawful by the courts, the governing body’s actions taken at an unlawful meeting are null and void and members of the governing body could be liable for civil penalties. Despite that caveat, hopefully this new AGO opinion allows agencies to breathe easier in the event they need to have a meeting entirely by phone or video conferencing.

Comments or questions? Please email me at fcollins@mrsc.org.