HB 1329: Answers to Your OPMA Questions
May 19, 2022
Category: Open Public Meetings Act , New Legislation and Regulations
The best laid schemes o' mice an' men
Gang aft a-gley
As we’ve all seen over the last few years, no matter how well we’ve planned, something always comes along to make us question what we think we know. Currently, local government agencies are balancing the existing emergency rules under Proclamation 20-28.15 and Proclamation 20-28.14 — which expire June 1 — with the statutory provisions of chapter 42.30 RCW (the Open Public Meetings Act or OPMA) as modified by the Washington State Legislature in ESHB 1329.
MRSC’s Managing Attorney Flannary Collins summarized ESHB 1329’s changes to the OPMA in The OPMA Gets an Update from the Legislature. Go re-read that blog. I’ll wait.
Welcome back! In this blog update we summarize some of your questions on what the new law means. A reminder that, as we noted in OPMA/PRA Emergency Proclamation Will Expire June 1, the emergency restrictions on public meetings will expire at 12:01 AM on June 1, 2022.
Does ESHB 1329 allow an agency to hold fully remote meetings absent an emergency?
No. Section 5 of ESHB 1329 clearly says an agency can hold a fully remote meeting only “after the declaration of an emergency by a local or state government or agency.” In order to do so, the agency must determine “that it cannot hold a meeting of the governing body with members or public attendance in person with reasonable safety because of the emergency.”
While the current OPMA-specific emergency proclamation will end on June 1, the governor’s general declaration of emergency (Proclamation 20-05) is still in effect. This may provide a legal basis for local counties, cities, towns, and special purpose districts to continue to operate their meetings fully remotely. There may also be local declarations of emergency that are still in effect. At least one city (Port Angeles) is considering a rule that ties restrictions on meetings to the county’s COVID-19 tracker. Check with your attorney to see if those declarations provide a sufficient basis to restrict access to meetings.
Can a member of the public be excluded from the in-person component of a meeting?
Yes, but only if the agency determines there are reasonable safety risks because of the emergency. The agency can “[h]old a meeting of the governing body at which the physical attendance by some or all members of the public is limited.”
Can we require people to provide their identifying information in order to provide public comment?
An agency can request that a speaker identify themselves to provide public comment but probably should not forbid them from speaking if they decline. Board meetings are a limited public forum, and MRSC has previously said that absent some other statutory requirement to hold a public hearing, the OPMA did not require a governing body to take comment at all. Since it chose to do so, a governing body could place content-neutral restrictions on participation. Some examples of these restrictions include identifying the speaker, limiting comments to items on the meeting agenda, and limiting the time per speaker.
ESHB 1329 does not change this analysis. It adds the requirement to the OPMA that an agency take comment at or before every regular meeting at which the board will take final action. But we believe the character of the meeting is still a limited public forum. The bill does not require that you allow verbal public comment during the meeting. It allows you to limit comments to written comments and to set a deadline by which they must be submitted. The bill also contains language making it clear that:
Nothing in this section diminishes the authority of governing bodies to deal with interruptions under RCW 42.30.050, limits the ability of the governing body to put limitations on the time available for public comment or on how public comment is accepted, or requires a governing body to accept public comment that renders orderly conduct of the meeting unfeasible.
From a policy perspective, many of us at MRSC have been discussing the sign-in requirement with agencies for several years. We’ve heard agencies express their concerns about publicizing speakers’ home addresses during a televised meeting, and about having those addresses become part of the public record because they are on a sign-in sheet.
We think there is a tension between the agency’s statutory right to control public comment and a person’s constitutional right to petition the government for redress. We suggest agencies look at the reason they want speakers to provide their name or address and see if they really need to keep that information. That is why we suggest that you can request identification but probably should not require it.
What is a “regular meeting” for purposes of the new public comment requirement?
ESHB 1329 did not change the requirement in RCW 42.30.070 that agencies adopt a schedule of regular meetings. While there is no specific definition of “regular meeting,” a conservative interpretation of the statute is that any meeting that is on the adopted schedule is a “regular meeting.” It does not matter if you call the meeting a “business meeting” or a “study session,” if the meeting is on a schedule that is adopted by ordinance or resolution then it is a regular meeting.
However, not all regular meetings are subject to the public comment requirement – only those “at which final action is taken.” (See the next question.)
What is “final action” for purposes of the new public comment requirement?
ESHB 1329 did not change the definition of “final action” in RCW 42.30.020(4).
"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.
If a new matter is added to a regular meeting agenda during the meeting, does the agency have to wait until the next regular meeting to take final action on that matter (to allow for public comment)?
No. The new language in the statute says that the agency
…shall provide an opportunity at or before every regular meeting at which final action is taken for public comment. The public comment required under this section may be taken orally at a public meeting, or by providing an opportunity for written testimony to be submitted before or at the meeting….
While the stated intent of ESHB 1329 is to increase transparency and public participation, and the bill encourages the use of technology to provide greater opportunities for public comment, the plain language of the statute only requires public comment before certain types of meetings, specifically meetings at which final action is taken. It does not require an agency to link the public comment with specific agenda items or to delay final action on a specific matter until it has received public comment on that matter.
If we’ve already held a public hearing on a matter but the governing body has not taken final action, do we still have to allow public comment on that matter?
No. The langauge requires public comment at or before every meeting at which final action is taken. It does not require public comment on every agenda item being considered at that meeting. Agencies can note on the agenda when comment will not be taken on a specific item because the hearing on that item has been closed. Presiding officers can also note this at the beginning of the public comment period.
Is the requirement to post agendas online (and the exceptions to that requirement) the same for regular and special meetings?
No. RCW 42.30.077 (regular meeting agendas), as amended by ESHB 1329, requires a special purpose district, city, or town post regular meeting agendas on their or another agency’s website unless the agency can show that it:
Has an aggregate valuation of the property subject to taxation by the district, city, or town of less than $400,000,000, as placed on the last completed and balanced tax rolls of the county preceding the date of the most recent tax levy;
Has a population within its jurisdiction of under 3,000 persons; and
Provides confirmation to the state auditor at the time it files its annual reports under RCW 43.09.230 that the cost of posting notices on a website of its own, a shared website, or on the website of the county in which the largest portion of the district's, city's, or town's population resides, would exceed one-tenth of one percent of the district's, city's, or town's budget.
Special meeting agendas are controlled by RCW 42.30.080 (which was otherwise amended by ESHB 1329). That statute still says that notices of a special meeting are not required to be posted online if “it employs no full-time equivalent employees, or does not employ personnel whose duty, as defined by a job description or existing contract, is to maintain or update the website.”
The legislative history of ESHB 1329 does not provide any insight as to why these two requirements are now different. You should discuss with your agency attorney whether it makes sense for your agency to follow the more restrictive of the two requirements. It seems that if your agency qualifies for the exception to post regular meetings it would also meet the requirement for special meetings.
Do the amendments to RCW 42.30.090 in section 11 of ESHB 1329 mean that we must publish an order or notice of adjournment every time we conclude a meeting?
No. MRSC asked Ann Macfarlane, a noted parliamentarian and co-founder of Jurassic Parliament, and she told us:
The customary language used in Robert’s Rules of Order is to conclude the meeting by adjourning it. This means “this meeting is ended.” This may occur in three instances:
If the members move to adjourn by majority vote (non-debatable motion)
If the scheduled business has come to an end, in which case the chair may say, “There being no further business, this meeting is adjourned.” No motion required.
If a riot breaks out and there is danger to safety, the chair may adjourn the meeting unilaterally.
However, Robert’s Rules also uses the phrase “to adjourn the meeting” to refer to a situation where the meeting is not yet concluded, so it is “adjourned to another time.” This is unfortunate. I wish that they had adopted the phrase “continue the meeting” for this situation.
MRSC believes that the term “adjournment” in the OPMA refers to rescheduling a regular or special meeting (e.g., because there isn’t a quorum) and that no notice has to be posted when a regular or special meeting just comes to an end. We agree with Ann that agencies can continue to say, “This meeting is adjourned” when the agency has concluded the business on the agenda.
For more information on this and other OPMA issues, see our Open Public Meetings Act topic page.
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.