Curing a Violation of the Open Public Meetings Act?

March 2013

By Milt Rowland and Steve DiJulio, Foster Pepper PLLC¹

What happens when a quorum of agency members have private discussions about matters pending before the agency for a vote? The easy answer is that such conversations violate the Open Public Meetings Act, chapter 42.30 RCW (or, the “OPMA”). If the agency members involved are aware that their actions violate the Act, they can be personally liable. If the violation is not intentional, the agency can still be liable for attorney's fees, and a later vote (even if public) might be held null and void by the courts. But if there is a violation of the OPMA, is there an opportunity for the agency to cure the defect and still act? That is the subject of this article.

The Open Public Meetings Act Generally

As a reminder, agencies subject to the OPMA are required to take both “action” and “final action” at a public meeting:

All meetings of the governing body of a public agency shall be open and public and all persons shall be permitted to attend any meeting of the governing body of a public agency, except as otherwise provided in this chapter.

RCW 42.30.030. The word “meeting” is broadly defined to mean any meeting “at which action is taken.” RCW 42.30.020(4). The OPMA only prohibits private (nonpublic) “meetings” if “action” is taken at the meeting. But, “action” is also broadly defined:

“Action” means the transaction of the official business of a public agency by a governing body including but not limited to receipt of public testimony, deliberations, discussions, considerations, reviews, evaluations, and final actions. “Final action” means a collective positive or negative decision, or an actual vote by a majority of the members of a governing body when sitting as a body or entity, upon a motion, proposal, resolution, order, or ordinance.

RCW 42.30.020(3) (emphasis supplied). These broad definitions match the liberal construction mandated by the OPMA. See RCW 42.30.910; see also RCW 42.30.010.²

Serial Meetings and Other Areas of Concern

This article does not discuss all OPMA cases that have reached the courts. But, the following examples occur more frequently than you may expect.

Serial communications that occur outside of a council or commission meeting can easily lead to a determination that a meeting has occurred (that is, discussions exchanged among a majority of a governing body). Wood v. Battleground School Dist., 107 Wn. App. 550 (2001) (action is taken when the governing members of an agency “communicate about issues that may or will come before the Board for a vote.”). Those discussions can be in person or by phone, email, text message or other media. MRSC regularly comments on this issue. See, for examplem MRSC's Knowing the Territory publication. In Organization to Preserve Agricultural Lands v. Adams County [OPAL], 128 Wn.2d 869 (1996), our Supreme Court held that informal private discussions (termed “ex parte” discussions) between two of Adams County's three commissioners constituted “action” even though such actions were highly informal and constituted, at most, only discussions-no vote was taken, no vote was committed, and neither commissioner did more than exchange information.

In Miller v. City of Tacoma, 138 Wn.2d 318 (1999), the Supreme Court addressed the Tacoma City Council's use of a “straw poll” in executive session. The Court held Tacoma liable for attorney's fees, but not penalties, for going beyond the parameters of permitted executive sessions. The Court said:

Here the council conducted a secret ballot. This did not weigh or evaluate the qualifications of the applicants, but identified a consensus candidate for appointment to the planning commission. As such, these secret ballots constituted “action” beyond mere evaluation of the candidates qualifications and therefore fell outside the scope of the RCW 42.30.110(1)(g) exception.

The Court held Tacoma liable for a technical violation of the Act, even though the trial court had found that the council members reasonably believed they were not violating the Act.

Liability under the OPMA

There are three potential effects of an action taken in violation of the Act. First, the agency actors can be held liable for a civil penalty of $100.00. Second, the agency will be held liable for the attorney's fees and costs incurred by the prevailing party. Finally, in some cases, a later action of the agency which is based upon an invalid nonpublic action can be held a nullity, and cannot be ratified. RCW 42.30.060 states that “Any action taken at meetings failing to comply with the provisions of this subsection shall be null and void.” To avoid that result, the agency must bring the matter up for a vote at a properly noticed, public meeting.³

A Later Public Meeting Will Not Wash Clean a Violation of The Act Unless the Later Meeting is Proper, Open, and Not Simply a “Summary Approval” of Earlier Discussions

A local government can better defend an agency action if the agency held a properly noticed public meeting after the nonpublic meeting that violated the OPMA. The usual rule is that a later agency action, in compliance with the Act, will “cure” a violation of the Act. In such cases, a court is not required to hold the subsequent agency action to be “null and void.”

In OPAL, the Adams County Board of Commissioners considered the grant of an unclassified use permit for a regional landfill. Two of the three commissioners informally (and privately) discussed the permit application in violation of the OPMA. The Court had to decide whether the discussions in violation of the Act rendered the County Commissioners' later permit decision void. The court decided that it did not because of the “extensive opportunity for input by opposing parties in this case.” The court stated that it was “particularly persuaded” by a decision of the Florida Supreme Court in reaching its decision. The Florida case, Tolar v. School Board of Liberty County, 398 So. 2d 427, 428 (Fla. 1981), is therefore instructive in interpreting Washington state law.

In Tolar, the Florida Supreme Court held that “invalidation of the proper formal action” taken after discussions in violation of Florida sunshine laws “was not required” because the involved citizen in that case “was given both notice of the meeting and an opportunity to express his views prior to the vote.” 398 So. 2d at 428. The court added:

Tolar relies primarily on Town of Palm Beach v. Gradison to support his position that the Board action in abolishing his position should be voided. In Gradison, the citizens planning committee which conducted its activities at nonpublic meetings was instrumental in the formulation of the comprehensive zoning plan which was perfunctorily adopted as a zoning ordinance by the town council at a public meeting. We held that this citizens planning committee, which was chosen by the town council at a nonpublic administrative meeting, reached the status of a board or commission that, to act legally, must comply with the sunshine law. We further found that zoning ordinance, which was a summary approval of the recommendation of the planning committed culminating from its numerous and detailed secret meetings, was void ab initio. The formal action in Gradison was merely the crystallization of secret decisions.

In Gradison, we said:

The statute should be construed so as to frustrate all evasive devises. This can be accomplished only by embracing the collective inquiry and discussion stages within the terms of the statute, as long as such inquiry and discussion is conducted by any committee or other authority appointed and established by a governmental agency, and relates to any matter which foreseeable action will be taken.

296 So. 2d at 477. This holding does not mean, however, that public final action of the Board will always be void and incurable merely because the topic of the final public action was previously discussed at a private meeting. Here, the School Board held a public meeting and permitted discussion on the abolishing of the position of director of administration and, then by voice vote at a public meeting, decided to abolish this position. This action taken in the sunshine will not now be voided.

398 So. 2d at 428 (emphasis supplied).

The Tolar and Gradison decisions of the Florida Supreme Court distinguished between those actions cured by subsequent open and public discussion and subsequent open action that was only summary in nature. This distinction appears consistent with Washington law. In a very early case brought under the OPMA, the Washington Supreme Court determined that the law school faculty at the University of Washington was subject to the Act even though its decisions were all subject to later Board of Governors actions. Cathcart v. Andersen, 85 Wn.2d 102 (1975). Our Supreme Court stated:

We believe that the purpose of the Act is to allow the public to view the decision-making process at all stages.

. . .

The right of the public to be present and to be heard during all phases of enactments by boards and commissions is a source of strength in our country. During past years tendencies toward secrecy in public affairs have been the subject of extensive criticism. Terms such as managed news, secret meetings, closed records, executive sessions, and study sessions have become synonymous with ‘hanky panky’ in the minds of public-spirited citizens. One purpose of the Sunshine Law was to maintain the faith of the public in governmental agencies. Regardless of their good intentions, these specified boards and commissions, through devious ways, should not be allowed to deprive the public of this inalienable right to be present and to be heard at all deliberations wherein decisions affecting the public are being made.

85 Wn.2d 107-108 (citation omitted).

OPAL thus stands for the proposition that an informal action by a quorum of an agency subject to the provisions of chapter 42.30 RCW can be cured by a later public meeting if public input is allowed and the public may observe the debate of the council or commission. But a subsequent vote taken without public comment, where the public is not given an opportunity “to view the decision-making process at all stages,” could be ruled void. See Miller v. City of Tacoma, 138 Wn.2d 318 (violation of the Act in executive session); Clark v. City of Lakewood, 259 F.3d 996 (9th Cir. 2001) (actions of a task force appointed by the city council were null and void, and further trial to determine whether the later city council adoption of the ordinance recommended by the task force was valid); Feature Realty, Inc. v. City of Spokane, 331 F.3d 1082 (9th Cir. 2003) (holding city-approved settlement was void, even though the settlement was part of a “consent agenda” later voted on in a properly held public meeting, because of the lack of opportunity for public input).

Conclusion

A violation of the OPMA may cause a subsequent agency action to be null and void even if the action is taken in an open public meeting. RCW 42.30.060. Under OPAL and other authority discussed in this column, the public's “right to know” will not be satisfied by a pro forma or rubberstamped action by a commission or council. To “cure” an agency's prior violation of the Act, the subsequent action must not only be in an open, public meeting, but the agency must also permit public discussion and involve active discussion by the elected officials on the pending action. Only with such an open process will an agency have the opportunity to “cure” an earlier violation of the OPMA.⁴

¹ Milt Rowland, a former Spokane Assistant City Attorney, is in the Spokane Office of Foster Pepper. Steve DiJulio, a regular contributor to this column, is a former Kent City Attorney and in the Foster Pepper Seattle office. Milt and Steve regularly serve as special counsel for cities, counties and special purpose districts.

² “The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.”

³ To prevail in a lawsuit against an individual or councilmember or commissioner under the OPMA, the plaintiff must show “(1) that a ‘member” of a governing body (2) attended a ‘meeting’ of that body (3) where ‘action’ was taken in violation of the OPMA, and (4) that the member had ‘knowledge’ that the meeting violated the OPMA.” Eugster v. City of Spokane, 110 Wn. App. 212 (2002) (emphasis supplied). In the Eugster case, the defendant council members were held not liable, because there was no “meeting.” Remember, the knowledge element applies only to individual liability. The public agency can be found to have violated the OPMA whether or not the councilmembers or commissioners knew they were violating the Act.

⁴ But a later, valid enactment will not necessarily relieve the agency of liability for an earlier violation of the OPMA. The later enactment will only prevent the discord associated with invalidation of an agency action on which others, and the agency itself, have relied.