Email and the OPMA: Key Tips for Local Government Elected Officials

At the outset, I recognize that some issues under the Open Public Meetings Act (OPMA) (chapter 42.30 RCW) can be especially challenging for local government elected officials who serve on a three-member governing body, since communications between any two such members can constitute a meeting under the OPMA. But what specific types of communications are we talking about here?

Fortunately, there is some court guidance on this issue. In Wood v. Battle Ground School District, 107 Wn. App. 550 (2001), the state court of appeals addressed a situation involving emails that were sent between members of a school board. Although the decision dates back to 2001, it continues to be relevant. Particularly helpful is the court’s analysis regarding how the OPMA applies to situations that many local elected officials will find familiar, including email communications and, by extension, phone conversations, text messaging, blogging, and discussions conducted on social media sites.

As an initial matter, note that consequences for OPMA violations can be serious, including possible civil penalties against individual members of the governing body, an award of costs and fees against the local government itself, and an invalidation of any "action" taken at an illegal meeting. See RCW 42.30.120 and RCW 42.30.060.

Of particular interest regarding the Wood decision, I think, is the court’s analysis related to email exchanges and when such exchanges can constitute a meeting under the OPMA. In concluding that an email exchange can constitute a meeting, the court also recognizes:

the need for balance between the right of the public to have its business conducted in the open and the need for members of governing bodies to obtain information and communicate in order to function effectively. Thus, we emphasize that the mere use or passive receipt of email does not automatically constitute a “meeting.”

Id. at 564 (internal footnote omitted).

The court makes several practical points applicable to email exchanges – as well as to communications more generally between members of a governing body – that I think are worth highlighting. Absent other applicable facts, the OPMA is not violated if:

• Less than a majority of the governing body meet (unless a committee of less than a majority of the governing body is acting on behalf of that body, holding a hearing, or taking testimony or public comment).
• Members of the governing body are merely receiving information about upcoming issues or communicating among themselves about matters unrelated to the governing body’s business. A governing body, for example, can travel or gather together for purposes other than a regular or special meeting.
• There is only passive receipt of information via email without discussion between members of the governing body.

A key point, particularly in this context, is an understanding of how broadly "action" is defined under the OPMA. This is important because it is “action” that determines whether a “meeting” has taken place. Under RCW 42.30.020(4), a "meeting" under the OPMA occurs whenever the governing body of a public agency takes "action." RCW 42.30.020(3) defines "action" as:

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.

As discussed by the court in the Wood decision, it's possible for a governing body to take “action” as defined by the OPMA if, for example, a majority of the governing body engage merely in an email discussion about an issue that may come before the body for a vote.

In Wood, the court, applying the OPMA to the facts at issue, took particular notice of the following facts which, if true, would mean that the board held an illegal meeting via email under the OPMA, because:

• The email discussions involved a majority of the school board, including emails sent by individual members to all members of the board with messages attached that included discussion between members about the matter.
• The email discussions related to the business of the governing body (e.g., regarding a possible declaratory judgment action, evaluation of an employee’s performance, and board duties).
• The email discussions were not the mere passive receipt of information but instead constituted an active exchange of information and opinions among board members, which suggests that the board was deliberating and/or discussing board business.

What about “serial” or “rolling” meetings? That kind of a meeting happens when a series of communications about agency business occurs involving, singly, less than a majority of the body, but involving, cumulatively, a majority or more of the body. So, for example, in the context of a five-member city council, a meeting would occur when Councilmember Adams and Councilmember Jefferson discuss a matter of council business via email and then Adams sends an email to Councilmember Lincoln indicating that he has discussed the issue with Jefferson, and then Lincoln responds to Adams, discussing that same matter in the email. A “meeting” under the OPMA doesn’t require the contemporaneous physical - or electronic - presence of the members. See, e.g., Eugster v. City of Spokane, 110 Wn. App. 212, 224 (2002).

Practical Tips

Regarding communications that occur outside of a public meeting between members of a local government governing body, I recommend consideration of the following to avoid potential OPMA violations:

• Keep in mind that, although passive receipt of information via email is permissible, discussion of issues via email by the governing body can constitute a meeting.
• If you want to provide via email information to other members of the governing body, especially regarding a matter that may come before the body for a vote, have the “Re:” or "Subject" line and the first line of the email itself clearly state: “For informational purposes only. Do not reply.”
• Don’t send an email to all or a majority of the governing body or use “reply all” when the recipients are the rest of the members or a majority of the governing body, except when the message is only to provide documents or factual information, such as emailing a document to all members for their review prior to the next meeting.
• Alternatively, rather than emailing materials to your colleagues on the governing body in preparation for a meeting, have a designated staff member email or otherwise provide the materials to the rest of the governing body.
• Be mindful of Public Records Act (chapter 42.56 RCW) and records retention requirements (e.g., chapter 40.14 RCW) that apply to public records, including public disclosure requirements applicable to emails and other records that relate to the conduct of government.

As a final note, my recommendation for local government officials is to be well versed in the legal requirements and principles above described and, if in doubt, don’t hit the “send” button on an email if you think the communication could potentially violate the OPMA. Email and other types of electronic communications can be effective tools, but those tools must be used wisely.