Are You Up-to-Date on the Open Public Meetings Act? Test Your Knowledge
January 23, 2023
Category: Open Public Meetings Act
The Open Public Meetings Act (OPMA) has gone through relatively significant changes since the COVID-19 pandemic hit in 2020. Local governments need to stay abreast of the changes in order to stay in compliance with the OPMA’s sticky procedural requirements. This pop quiz will help update your OPMA knowledge to avoid violations.
Question #1: Remote Meetings
We are still holding our council/commission meetings fully remote, with no in-person option to attend. Is this allowed?
Both No and Maybe are the correct responses. If a local, state, or federal emergency has been declared and the public agency determines it cannot hold an in-person meeting, then the council/commission can hold its meeting fully remote. Otherwise, fully remote is not allowed (RCW 42.30.230).
Question #2: Remote Attendance
Can all members of the governing body remotely attend the governing body’s meeting?
Under state law, the answer is Yes. RCW 42.30.230(5) allows members of the governing body to attend the meeting remotely but the OPMA does require that an in-person attendance option be available for the public (absent an emergency). Some local governments have adopted policies restricting remote attendance by members of the governing body, so local policies may affect this answer.
Question #3: Public Comment
Are we required to take public comment at special meetings of the governing body?
The answer is a qualified No. The plain language in RCW 42.30.240 requires public comment be taken only at or before regular meetings of the governing body at which final action is taken. The statute does not require public comment be taken at special meetings, even if final action is taken at this meeting. However, to avoid confusion and frustration from the public, it may be a good idea to take public comment at special meetings at which final action is taken.
As well, some local government policies may require public comment at special meetings where final action is taken (or even at regular and special meetings where no final action is taken), so please consult your local policies for a complete answer to this question. Note that the Washington State Attorney General’s Office Open Government Ombuds cautions that final action includes any “positive or negative decision, or an actual vote...upon a motion, proposal resolution, order, or ordinance,” which may include simply voting to adopt the minutes from previous meetings. See RCW 42.30.020(3).
Be cautious with this public comment requirement: It may be in the agency’s best interest to include public comment even when it thinks it’s not statutorily required.
Question #4: Meeting Minutes
Are meeting minutes required for executive sessions?
No. Meeting minutes are only required for regular and special meetings and are not required for that part of the meeting held in executive session (RCW 42.30.035). However, the announced purpose of the executive session must be entered into the regular or special meeting minutes. See RCW 42.30.110(2).
Question #5: Legislative Body Attendance at Commission or Committee Meeting
Can members of the legislative body attend a meeting of a commission or committee created by that body?
Yes. MRSC takes the position that elected officials’ attendance at commission, committee, or advisory board meetings is not generally prohibited. However, there are a some instances where the agency should notice this attendance as a meeting of the legislative body:
- If the committee includes members of the legislative body and attendance by additional members results in a quorum of the legislative body in attendance at the committee meeting (see AGO 2010 No. 9); and
- If a quorum of the legislative body is present in the audience and are actually participating in the meeting.
In this second example, even if the quorum is only passively receiving information, the agency may choose to notice this as a meeting of the legislative body, given the broad definition of ‘action’ under the OPMA. As well, consider that the presence of council or commission members at a quasi-judicial hearing held in front of the planning commission or of a quorum of the governing body present at any commission, committee, or advisory board meeting can raise appearance and undue influence concerns.
A policy argument might be made that an independent advisory body should be able to formulate their recommendations without undue influence by the legislative body that appointed them to make independent recommendations. Under this policy argument, the presence — and particularly the active participation — of an elected official in the advisory commissions’ deliberations could impact the ability of the advisory commission to act independently and impartially in making their recommendations. Additionally, local policies may restrict legislative members' attendance at such meetings.
Question #6: Recording Meetings
Must we audio or video record meetings of the governing body?
No. RCW 42.30.220 encourages but does not require agencies to make an audio or video recording of regular meetings and make those available online for a minimum of six months.
Bonus Question: Can we prohibit attendees from recording a meeting of the governing body?
No, unless attendees are unreasonably disrupting the meeting by doing so. There is no reasonable expectation of privacy in an open public meeting; therefore, attendees are free to record the meeting so long as they are not doing it in a way that is disrupting the meeting as set forth in RCW 42.30.050. Note that RCW 9.73.030(1) does prohibit someone from recording private conversations or communications without consent, but this is inapplicable to open public meetings.
Question #7: Agenda Posting
Are all local governments required to post their regular meeting agendas online?
No. RCW 42.30.077 allows a local government to opt out of online agenda posting if it meets the following criteria:
- Has an aggregate valuation of the property subject to taxation by the special purpose district, city, or town of less than $400,000,000;
- Has a population of under 3,000; and
- Provides confirmation to the state auditor that the cost of posting notices on its website or a shared website would exceed one-tenth of its budget.
Those local governments that do not meet the above criteria must post their regular meeting agendas on the agency website or a shared website no later than 24 hours in advance of the meeting.
Your quiz time is up! Thanks for participating.
In related news, MRSC is offering an OPMA training in June, along with a comprehensive update of its OPMA Publication and other web-based materials. Please keep an eye on the Upcoming Trainings and Publications webpages for these updates later in 2023, or simply sign up to receive one of our regular e-newsletters, which feature upcoming trainings.
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.