Action Outside a Public Meeting, What Could Possibly Go Wrong?

Sometimes a legislative body needs to take quick action. Maybe a grant application must be authorized before the deadline passes, or action is needed to avoid a lawsuit or to settle one. In all likelihood a majority of the governing body will be in agreement as to the course of action to take. With that in mind, can’t a board chair merely poll the membership to make the decision? Can’t members just share and discuss their opinions with other members to prepare a proposal for an upcoming open meeting?

The answer, in almost every instance, is an emphatic “No!” This blog reviews some of the requirements of the Open Public Meetings Act (OPMA) and what can go wrong if those requirements are not met.

Basic Requirements

The OPMA requires that “action” occur at meetings that are open and public, with a few exceptions (RCW 42.30.030). In RCW 42.30.020(3) “action” is defined broadly to include “deliberations, discussions, considerations, reviews, [and] evaluations,” as well as final actions. With that definition, if the chair privately polls a board’s membership to make a decision, action has occurred. If a majority of a council discusses business outside a public meeting, action has occurred — even if the discussion was only to form a tentative position for later consideration. An action taken outside a public meeting by members of a legislative body is a violation of the OPMA (RCW 42.30.120).

What Defines an Action?

But shouldn’t the action be allowed if it is noncontroversial or not of much interest to the public? Who wouldn’t want the city to get free grant money?  If a street desperately needs repair, can’t councilmembers individually tell the mayor to sign a contract for the work and then take formal action later? Who could complain about that? Good intentions or a favored outcome, however, are not substitutes for following the law. The law is clear: a legislative body must make its decisions, or take collective steps to reach a decision, in a meeting open to the public. There is no wiggle room, no gimmes.

If the law is not followed, both any action taken and the members who took it are in jeopardy. A lawsuit can be filed against the jurisdiction. A final decision improperly made may need to be remade, costing time and perhaps, money. Members who knowingly participated can be monetarily penalized. Any challenge likely must be defended, and that can require legal costs and time.

Answers to Common Questions Regarding the OPMA

With the costs of an OPMA violation in mind, here are a few things to remember:

Meetings do not have to take place in-person, at one time, to be considered a "meeting." Although meetings typically occur when all participants are present at a designated time and place, it is also possible for a majority to meet remotely, such as by telephone or email. A meeting can also occur sequentially, over time, if enough members to make a quorum collectively discuss or act upon an issue outside a public meeting. For example, board member A speaks to board member B about board business and then B discusses the prior conversations with board member C. Once a quorum has participated and shared information, a meeting has occurred. If notice of the meeting was not given and the public not allowed to attend, the OPMA is violated.

Passive receipt of information outside a public meeting does not violate the OPMA. A majority of the legislative body, however, may not interact with one another to discuss the information.

Meetings that are not regular meetings are special meetings. Written notice of the time, place, and business to be transacted at a special meeting must be given to each member of the legislative body as well as to any member of the press who has filed a written request for notice.

Beware of informal meetings. For example, if a majority of a council meets for dinner prior to a regular council meeting to go over the upcoming agenda, it’s a meeting. If the members meet for coffee after the regular meeting to discuss how things went, it’s a meeting. Unless notice was given and the public allowed to attend, the OPMA is violated. On the other hand, if a majority meets at a party or travels together to a conference, there is no meeting unless a majority discusses business. Talk about the Mariners. Or not. Just don’t talk about business.

Penalties are high. Members of the legislative body who knowingly violate the OPMA are subject to a $500 penalty or, for a subsequent violation, $1,000. The jurisdiction itself may be required to pay attorney fees and costs in addition to the legal expense of defending its actions. A violation can also serve as a basis for recall.

Policy work is undone. Action taken at a meeting for which required notice was not given is null and void.

Questions? Comments? 

If you have comments about this blog post, please comment below or email Paul Sullivan at psullivan@mrsc.org. If you have questions about this, or other local government issues, you can contact us anytime by using our Ask MRSC form or calling us at (206) 625-1300 or (800) 933-6772.