Behind Closed Doors: Recent Cases Address Requirements for Executive Sessions During Special Meetings

The legislative intent of the Open Public Meetings Act (OPMA) strongly supports open government, as this intent language from RCW 42.30.010 demonstrates:

all public agencies (…) exist to aid in the conduct of the people's business. It is the intent of this chapter that their actions be taken openly and that their deliberations be conducted openly. 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 and informing the people's public servants of their views so that they may retain control over the instruments they have created…  

Two recent state court of appeals decisions — West v. Walla Walla City Council (4/21/2025) and McFarland v. Tompkins (4/24/2025) — upheld the right of individuals to challenge OPMA violations and to seek penalties for them. These cases involve similar fact patterns where executive sessions were convened during special meetings. In this blog I discuss some of the facts in these cases and the OPMA requirements for noticing special meetings as well as for executive sessions.

Caveat

The West and McFarland cases have both been remanded to their respective trial courts for further proceedings. Please also note that both cases involve appeals of separate trial court rulings granting summary judgment to the local government defendants. As of this writing, in either or both cases there may still be petitions for discretionary review to the Washington State Supreme Court.

As a result, in this blog I do not mean to express an opinion directly or indirectly about the specific facts or legal issues in these cases including standing (right to bring suit), laches (unreasonable delay), mootness (no longer an issue), summary judgment, injunctive and declaratory relief, costs, expenses, and penalties. If these issues interest you, I recommend reading each of the decisions at your convenience.

Background

As a reminder, here is some regulatory background on the notice required for special meetings and executive sessions

Notice of Special Meetings

When a governing body holds a special meeting (rather than a regular meeting), RCW 42.30.080(3) requires the notice to specify “the business to be transacted.” Further, “final disposition shall not be taken on any other matter at such meetings by the governing body.”

For more on the latter, our blog, Special Meetings: Answering Some Frequently Asked Questions, covers the type of action a governing body can take during special meetings.

Executive Sessions

There are only limited exceptions to the OPMA mandate that public meetings of governing bodies of public agencies be open to the public. Those exceptions include the legal authority to convene executive sessions to discuss or consider matters as narrowly set forth in RCW 42.30.110(1). For more information, see our Executive Sessions FAQs webpage.

Key Facts: West v. City of Walla Walla

In the West case, a notice of a November 18, 2022, special meeting of the Walla Walla City Council indicated that the business to be transacted would be an executive session pursuant to RCW 42.30.110(1)(g) to evaluate the qualifications of candidates for city manager followed by action in the public portion of the meeting to “[v]ote to select 5 finalists for the position of City Manager.” However, it appears that the executive session went beyond discussion and consideration of qualifications to also include a decision to negotiate with one candidate to be city manager.

 According to the court decision, after the council ended the executive session and returned to the special public meeting, the mayor indicated: “[t]he council is unanimously of the opinion that of the eight semifinalists, that one of them (…) is (…) superior to the other applicants.” The council then approved a motion to move forward with negotiations and an offer for one candidate and did not select finalist candidates.

After the plaintiff brought a lawsuit in February 2023, the trial court eventually dismissed the case finding no OPMA violation had occurred. The dismissal was also based on several procedural grounds. The court of appeals reversed, holding the OPMA was violated in two ways at the November 18 special meeting when the council did more than merely “evaluate the qualifications of candidates,” but apparently reached a consensus to move forward with one candidate agreed upon during an executive session — a final disposition action not contemplated by the special meeting notice.

The case was remanded to the trial court to determine whether the council knowingly violated the OPMA and, if so, to consider civil penalties and costs.

Key Facts: McFarland v. Tompkins

In the Mcfarland case, at its January 4, 2021, regular meeting, the Walla Walla Board of County Commissioners (BOCC) decided to send a letter in support of a group lobbying to limit the governor’s emergency powers. On January 5, 2021, the BOCC issued a notice of a January 7 special meeting with the notice indicating that the business to be transacted would be to hold an executive session to discuss litigation or potential litigation and to “discuss miscellaneous business to come before the Board.”

After the executive session on January 7, the BOCC returned to an open meeting and reviewed a proposed letter regarding the governor's powers. The BOCC then approved drafting a letter to the governor and to state legislators regarding the governor’s powers.

After the plaintiff brought a lawsuit in September 2022 against the county and its commissioners, the trial court dismissed the case on procedural grounds including mootness, standing, laches, and that there was no evidence that individual commissioners “knowingly” violated the OPMA.

Despite dismissing most of the case on these procedural grounds, the trial court still held that RCW 42.30.080 was violated because the meeting notice insufficiently described the business to be transacted at the special meeting. Walla Walla County did not challenge this holding, and the appellate court pointed out that the trial court was correct. Such a broad notice fails to “specify (…) the business to be transacted” because a “member of the public could interpret the agenda subject’s vague nomenclature to describe limitless topics.”

The appellate court did, however, reverse the dismissal of the case and sent the case back to the trial court to determine whether the commissioners knowingly violated the OPMA and, if so, whether to impose civil penalties.

Tips for Future Meetings

With these cases in mind here are a few tips regarding the meeting notice, scope of executive session, returning from executive to open session, and on the ongoing need for elected officials training.

Specificity of the Special Meeting Notice

One takeaway for cases where executive sessions are convened during special meetings is that the “business to be transacted” section of special meeting notices pursuant to RCW 42.30.080(3) should clearly cover what the governing body intends to do at the special meeting. It should not be stated too broad, such as “miscellaneous business” — a phrase that we may see frequently in regular meeting agendas.

That said, this part of the notice should also not be too narrow, such as selecting a specific number of candidates to move forward with rather than more generally determining next steps in the selection process.

Scope of Executive Session

During an executive session, all attendees should endeavor to stay well within the statutory reason or reasons the session has been convened to consider or discuss. The courts continue to narrowly interpret the allowed reasons for executive session in RCW 42.30.110.

If the subject is litigation or pending litigation, then counsel is required to be present and could be consulted if the discussion starts to move away from the reason(s) for the session. If the matter is about qualifications of candidates for employment or an employee’s performance, then make sure no decisions are being made until the public meeting is reconvened in open session.

Returning to Open Session

When returning to an open session from a concluded executive session during a special meeting, it is a good idea to review the specific language of the special meeting notice and to consider only action or final action that is within the parameters of the notice. If the meeting starts to take a different turn, then consider adjourning and saving further matters for the next regular meeting or another special meeting — which will involve the required notice and a new description of the “business to be transacted.”

Training

Another consideration is open government training and refresher training for elected officials. There are many resources available for OPMA training and guidance including on MRSC’s website.

Our Ask MRSC consulting services are also available to our city, town, county, and special purpose district customers, and OPMA questions are among some of the most frequent questions we encounter.

Final Thoughts

I recommend consultation with your agency’s legal counsel when setting and conducting executive sessions during special meetings. There are several procedural steps that must be followed and strictly adhered to for special meetings. Your legal counsel is the best resource for your agency and matters before your governing board.

Keep in mind the importance of open government and the intent of the OPMA. The business of public agencies is the people’s business. The actions of public agencies are to be taken openly, and their deliberations are to be conducted openly. Whether a topic initially seems controversial or not, assume the public wants to know, wants to participate, and wants to have the opportunity to be present. Careful consideration should always be given whenever you close the doors to the public.