The public meeting that wasn't

What do you have when 11 elected officials get together to discuss publicly funded projects?

Apparently a private meeting.

Last week I asserted that Commissioners Steve Stuart and Marc Boldt violated the state’s Open Public Meetings Act.

I should not have been so bold.

Especially since, as one of my colleagues likes to say, state laws concerning public records and public meetings have more holes than swiss cheese.

Clark County Chief Civil Deputy Prosecutor Bronson Potter wrote a two-page letter, which I would love to link to but I’m having technical difficulties and for all the time I’ve spent trying to link it I could have retyped it.

And so now I will.

Here’s Potter’s March 1 letter, re: February 21, 2011 8 a.m. meeting with Representative John L. Mica:

Dear Commissioner Stuart,

You have asked for my opinion as to whether or not a meeting that you, Commissioner Boldt and other local officials attended with Representatives Mica and Herrera Beutler required notice pursuant to the Open Public Meetings Act (OPMA). This Monday morning meeting was arranged late on Friday afternoon by Representative Herrera Beutler’s office. The purpose of the meeting was for local elected officials to provide Representative Mica (who chairs the House Transportation and Infrastructure Committee) with comments on how the upcoming Transportation Reauthorization Bill might be crafted in a way that facilitates the completion of projects. The meeting did not focus on any specific project. Rather, the purpose of the meeting was to receive comments regarding how projects might be accomplished given rising costs and declining revenues. As explained below, it is my opinion that this meeting did not require notice, pursuant to the OPMA.

The notice requirements of the OPMA are found at RCW 42.30.060 and RCW 42.30.080. RCW 42.30.060 provides that no ordinance, resolution, rule, regulation, order or directive shall be adopted, except in a regular meeting or a meeting for which notice has been given. RCW 42.30.080 sets forth the notice requirement for special meetings.

The OPMA defines “meeting” as “meetings at which action is taken.” The term “action” is defined as the “transaction of official business of a public agency by a governing body including, but not limited to, the receipt of public testimony, deliberations, discussions, considerations, reviews, evaluations and final actions.”

The fact that a quorum of the Board is present at the same time and place does not automatically mean that a “meeting” has occurred for the purposes of the OPMA because an “action” must occur to trigger the OPMA. In Wood v. Battle Ground Sch. Dist., 107 Wn.App. 550 (2001) the court considered what constitutes an “action.” The court stated:

The governing body members must communicate about issues that may or will come before the board for a vote; in other words, the members must take “action” as the OPMA defines it.

The Attorney General issued an opinion, 2006 AGO No. 6, related to a quorum of a council attending a meeting called by another agency. The opinion began by recognizing that the mere presence of a quorum of the members of a city council did not constitute a “public meeting” for the purposes of the OPMA unless the council took “action” such as voting, deliberating or using the meeting as a source of public testimony for council action. The opinion also states that the OPMA was not triggered unless the transaction of the official business of the council occurred, such as members deliberating or discussing a decision they might eventually make.

The purpose of the meeting in question was not to take an “action” with respect to a matter that would come before the Board for future deliberation or discussion. Rather, it was an opportunity for a number of local officials to comment on federal transportation and infrastructure issues. Because no “action” was taken at the meeting, the OPMA requirements for notice were not triggered.

I understand that it has been the Board’s practice to announce when a quorum of the Board is going to be present at a location regardless of whether an “action” is going to be taken. Although this is not technically required by the OPMA, there is no reason to discontinue this practice. I understand that it did not occur for the meeting in question due to the short notice of the meeting. Your current practice furthers the OPMA’s policy of open government.

Sincerely,

Bronson Potter
Chief Civil Deputy

The Columbian’s attorney, Eric Stahl of Seattle, did not disagree with Potter’s analysis.

Stahl added only that we cannot be sure the commissioners didn’t violate the OPMA because we don’t know for sure what was discussed.