HomeMy WebLinkAbout050922W011
to the
Effective
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in
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Philip C. Hunsucker, Chief Civil DPA
Commissioners on May 9, 2022
Act that Are
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Presentation to the Board of County
May 5, 2022
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, Chapter 153, Laws of 2022
5532
, Chapter 115, Laws of 2022., Chapter 71, Laws of 2022.
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QUESTIONS?
Legislative Changes to OPMA During the 2022 Legislative Session
1
Sec. 1.RCW 42.30.090–NEW SECTION
NEW SECTION.Sec. 1.The legislature finds and declares that, due to technological
advances since the 1971 adoption of the open public meetings act, elected officials no longer
conduct the public’s business solely at in-person meetings, but can and do utilize telephonic and
other electronic methods to efficiently conduct the business of state and local government
remotely. Further, limitations on public gatherings required as the result of a disaster or emergency,
for example, to assist in preventing the spread of infectious diseases, may affirmatively necessitate
the use of technology and the avoidance of in-person attendance at public meetings for the conduct
of governmental business. It is the policy of the state that a governing body’s actions, including
deliberations, shall be taken and conducted in the open. When the public cannot observe and
participate in person, it may limit participation in democracy. Therefore, this act shall be construed
in favor of ensuring access by the public to observe elected officials when they meet pursuant to
this act. It is the intent of this act to modernize and update the open public meetings act emergency
procedures to reflect technological advances, while maintaining the act’s public policy that
governing body’s actions and deliberationsbe taken and conducted openly while balancing public
safety in emergency conditions. Governing bodies are encouraged to adopt resolutions or
ordinances establishing where and how meetings will be held in the event of an emergency, in
order to allow the public to more easily learn about and observe public agency action in an
emergent situation.
The legislature further finds people participating in their 13 government, especially through
public comment, is an essential part of developing public policy. The legislature finds that there
are numerous developing technologies that can be used to facilitate public comment, especially for
those with disabilities, underserved communities, and those who face time or distance challenges
when traveling to public meetings. Therefore, the legislature intends to encourage public agencies
to make use of remote access tools as fully as practicable to encourage public engagement and
better serve their communities.
Sec. 2.RCW 42.30.010 and 1971 ex.s. c 250 s 1 are each amendedto read as follows:
The legislature finds and declares that all public commissions, boards, councils,
committees, subcommittees, departments, divisions, offices, and all other public agencies of this
state and subdivisions thereof 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 viewsso that they may retain control
over the instruments they have created. For these reasons, even when not required by law, public
1
Unless otherwise noted, all sections below are from Engrossed Substitute House Bill 1329, Chapter 115, Laws of
2022.
1
agencies are encouraged to incorporate and accept public comment during their decision-making
process.
2
Sec. 6.RCW 42.56.010 and 2017 c 303 s 1 are each amended toread as follows:
The definitions in this section apply throughout this chapterunless the context clearly
requires otherwise.
(1) “Agency”includes all state agencies and all local agencies.“State agency”includes
every state office, department, division,bureau, board, commission, or other state agency. “Local
agency”includes every county, city, town, municipal corporation, quasi municipal corporation, or
special purpose district, or any office,department, division, bureau, board, commission, or agency
thereof,or other local public agency.“Agency”does not include acomprehensive cancer center
participating in a collaborativearrangement as defined in section 2 of this act that is operated in
conformance with section 2 of this act.
(2) “Person in interest”means the person who is the subject of arecord or any
representative designated by that person, except thatif that person is under a legal disability,
“person in interest”means and includes the parent or duly appointed legal representative.
(3) “Public record”includes any writing containing informationrelating to the conduct of
government or the performance of anygovernmental or proprietary function prepared, owned,
used, orretained by any stateor local agency regardless of physical form orcharacteristics. For
the office of the secretary of the senate andthe office of the chief clerk of the house of
representatives, publicrecords means legislative records as defined in RCW 40.14.100 andalso
means the following: All budget and financial records; personnelleave, travel, and payroll records;
records of legislative sessions;reports submitted to the legislature; and any other record designated
a public record by any official action of the senateor the house ofrepresentatives. This definition
does not include records that arenot otherwise required to be retained by the agency and are held
by volunteers who:
(a) Do not serve in an administrative capacity;
(b) Have not been appointed by the agency to an agency board, commission, or internship;
and
(c) Do not have a supervisory role or delegated agency authority.
(4) “Writing” means handwriting, typewriting, printing, photostating, photographing, and
every other means of recording any form of communication or representation including, but not
limited to, letters, words, pictures, sounds, or symbols, or combination thereof, and all papers,
maps, magnetic or paper tapes, photographic films and prints, motion picture, film and video
recordings, magnetic or punched cards, discs, drums, diskettes, sound recordings, and other
documents including existing data compilations from which information may be obtained or
translated.
2
This section 6 is from Engrossed House Bill 1744, Chapter 71, Laws of 2022.
2
Sec. 3. RCW 42.30.030 and 1971 ex.s. c 250 s 3 are each amended to read as follows:
(1)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.
(2) Public agencies are encouraged to provide for the increased ability of the public to
observe and participate in the meetings of governing bodies through real-time telephonic,
electronic, internet, or other readily available means of remote access that do not require an
additional cost to access the meeting.
NEW SECTION.Sec. 4.A new section is added to chapter 42.30 RCW to read as follows:
(1) Public agencies are encouraged to make an audio or video recording of, or to provide
an online streaming option for, all regular meetings of its governing body, and to make recordings
of these meetings available online for a minimum of six months.
(2) This section does not alter a local government’s recordkeeping requirements under
chapter 42.56 RCW.
NEW SECTION.Sec. 5.A new section is added to chapter 42.30 RCW to read as follows:
(1) If, after the declaration of an emergency by a local or state government or agency, or
by the federal government, a public agency determines that it cannot hold a meeting of the
governing body with members or public attendance in person with reasonable safety because of
the emergency, the public agency may:
(a) Hold a remote meeting of the governing body without a physical location; or
(b) Hold a meeting of the governing body at which the physical attendance by some or all
members of the public is limited due to a declared emergency.
(2) During a remote meeting, members of the governing body may appear or attend by
phone or by other electronic means that allows real-time verbal communication without being in
the same physical location. For a remote meeting or a meeting at which the physical attendance by
some or all members of the public is limited due to a declared emergency, the public agency must
provide an option for the public to listen to the proceedings telephonically or by using a readily
available alternative in real-time that does not require any additional cost for participation. Free
readily available options include, but are not limited to, broadcast by the public agency on a locally
available cable television station that is available throughout the jurisdiction or other electronic,
internet, or other means of remote access that does not require any additional cost for access to the
program. The public agency may also allow the other electronic means of remote access.
(3) No action may be taken at a remote meeting or a meeting at which the physical
attendance by some or all members of the public is limited due to a declared emergency if the
public agency has not provided an option for the public to listen to proceedings pursuant to
subsection (2) of this section, except for an executive session as authorized in this chapter.
3
(4) Notice of a remote meeting without a physical location or a meeting at which the
physical attendance by some or all members of the public is limited due to a declared emergency
must be provided in accordance with this chapter and must include instructions on how the public
may listen live to proceedings and on how the public may access any other electronic means of
remote access offered by the public agency.
(5) A remote meeting or a meeting at which the physical attendance by some or all members
of the public is limited due to a declared emergency that is held under the provisions of this section
shall be considered open and public in compliance with the requirements of this chapter. Nothing
in this section alters the ability of public agencies to take action in response to an emergency as
provided for in RCW 42.30.070, or to have members of a governing body participate in a meeting
remotely with no declared emergency.
(6) Notwithstanding any other provision in this section, any governing body of a public
agency which held some of its regular meetings remotely prior to March 1, 2020, may continue to
hold some of its regular meetings remotely with no declared emergency so long as the public
agency provides an option for the public to listen to the proceedings pursuant to subsection (2) of
this section.
Sec. 6.RCW 42.30.040 and 2012 c 117 s 124 are each amended to read as follows:
A member of the public shall not be required, as a condition to attendance at a meeting of
a governing body, to register his or her name and other information, to complete a questionnaire,
or otherwise to fulfill any condition precedent to his or her attendance. This section does not
prohibit any generally applicable conditions determined by the governing body to be reasonably
necessary to protect the public health or safety, or to protect against interruption of the meeting,
including a meeting at which the physical attendance by some or all members of the public is
limited due to a declared emergency.
Sec. 7.RCW 42.30.050 and 1971 ex.s. c 250 s 5 are each amended to read as follows:
In the event that any meeting is interrupted by a group or groups of persons so as to render
the orderly conduct of such meeting unfeasible and order cannot be restored by the removal of
individuals who are interrupting the meeting, the members of the governing body conducting the
meeting may order the meeting room cleared and continue in session or may adjourn the meeting
and reconvene at another location selected by majority vote of the members. In such a session,
final disposition may be taken only on matters appearing on the agenda. Representatives of the
press orother news media, except those participating in the disturbance, shall be allowed to attend
any session held pursuant to this section. Nothing in this section shall prohibit the governing body
from establishing a procedure for readmitting an individual orindividuals not responsible for
disturbing the orderly conduct of the meeting. Nothing in this section prohibits the governing body
from stopping people from speaking to the governing body when not recognized by the governing
body to speak.
Sec. 8.RCW 42.30.070 and 1983 c 155 s 2 are each amended to read as follows:
The governing body of a public agency shall provide the time for holding regular meetings
by ordinance, resolution, bylaws, or by whatever other rule is required for the conduct of business
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bythat body. Unless otherwise provided for in the act under which the public agency was formed,
meetings of the governing body need not be held within the boundaries of the territory over which
the public agency exercises jurisdiction. If at any time any regular meeting falls on a holiday, such
regular meeting shall be held on the next business day. If, by reason of fire, flood, earthquake, or
other emergency, there is a need for expedited action by a governing body to meet the emergency,
the presiding officer of the governing body may provide for a meeting site other than the regular
meeting site, for a remote meeting without a physical location, or for a meeting at which the
physical attendance by some or all members of the public is limited due to a declared emergency,
and the notice requirements of this chapter shall be suspended during such emergency. It shall not
be a violation of the requirements of this chapter for a majority of the members of a governing
body to travel together or gather for purposesother than a regular meeting or a special meeting as
these terms are used in this chapter: PROVIDED, That they take no action as defined in this
chapter.
Sec. 9.RCW 42.30.077 and 2014 c 61 s 2 are each amended to read as follows:
(1)Public agencies withgoverning bodies must make the agenda of each regular meeting
of the governing body available online no later than ((twenty-four)) 24 hours in advance of the
published start time of the meeting. An agency subject to provisions of this section ((is 19 not
required to post an agenda if it does not have a website or if it employs fewer than ten full-time
equivalent employees))may share a website with, or have its website hosted by, another public
agency to post meeting agendas, minutes, budgets, contact information, and other records,
including any resolution or ordinance adopted by the agency establishing where and how the public
agency will meet in the event of an emergency.Nothing in this section prohibits subsequent
modifications to agendas nor invalidates any otherwise legal action taken at a meeting where the
agenda was not posted in accordance with this section. Nothing in this section modifies notice
requirements or shall be construed as establishing that a public body or agency’s online posting of
anagenda as required by this section is sufficient notice to satisfy public notice requirements
established under other laws. Failure to post an agenda in accordance with this section shall not
provide a basis for awarding attorney fees under RCW 42.30.120 or commencing an action for
mandamus or injunction under RCW 42.30.130.
(2) A special purpose district, city, or town subject to the provisions of this section is not
required to post an agenda online if the district, city, or town:
(a) 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;
(b) Has a population within its jurisdiction of under 3,000 persons; and
(c) 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.
Sec. 10.RCW 42.30.080 and 2012 c 188 s 1 are each amended to read as follows:
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(1) A specialmeeting may be called at any time by the presiding officer of the governing
body of a public agency or by a majority of the members of the governing body by delivering
written notice personally, by mail, by fax, or by ((electronic mail))emailto each member of the
governing body. Written notice shall be deemed waived in the following circumstances:
(a) A member submits a written waiver of notice with the clerk or secretary of the
governing body at or prior to the time the meeting convenes. A written waiver may be given by
telegram, fax, or ((electronic mail))email; or
(b) A member is actually present at the time the meeting convenes.
(2) Notice of a special meeting called under subsection (1) of this section shall be:
(a) Delivered to each local newspaperof general circulation and local radio or television
station that has on file with the governing body a written request to be notified of such special
meeting or of all special meetings;
(b) Posted on the agency’s website. An agency is not required to post a special meeting
notice on its website if it (((i))) does not have a website((; (ii)))or share a website with another
agency.Except in the case of a remote meeting or a meeting at which the physical attendance by
some or all members of the public is limited due to a declared emergency as provided for in this
chapter, an agency is not required to post a special meeting notice on its website if itemploys
((fewer than ten))nofull-time equivalent employees((;)), or(((iii))) does not employ personnel
whose duty, as defined by a job description or existing contract, is to maintain or update the
website; and
(c) Prominently displayed at the main entrance of the agency’s principal location and the
meeting site if it is not held at the agency’s principal location and is not held as a remote meeting;
except that during a declared emergency which prevents a meeting from being held in-person with
reasonable safety an agency that hosts a website or shares a website with another agency may
instead post notice ofa remote meeting without a physical location on the website hosted or shared
by the agency.
Such notice must be delivered or posted, as applicable, at least ((twenty-four))24hours
before the time of such meeting as specified in the notice.
(3) The call and notices required under subsections (1) and (2) of this section shall specify
the time and place of the special meeting and the business to be transacted. Final disposition shall
not be taken on any other matter at such meetings by the governing body.
(4) The notices provided in this section may be dispensed with in the event a special
meeting is called to deal with an emergency involving injury or damage to persons or property or
the likelihood of such injury or damage, when time requirements of such notice would make notice
impractical and increase the likelihood of such injury or damage, or when the required notice
cannot be posted or displayed with reasonable safety, including but not limited to declared
emergencies in which travel to physically post notice is barred or advised against.
Sec. 11. RCW 42.30.090 and 2012 c 117 s 125 are each amended toread as follows:
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. . . ((Whenever)) Except in the case of remote meetings withouta physical location as
provided for in this chapter, whenever any meetingis adjourned a copy of the order or notice of
adjournment shall be conspicuously posted immediately after the time of the adjournment on or
near the door of the place where the regular, adjourned regular, special, or adjourned special
meeting was held.
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Sec.13.RCW42.30.110and2019c162s2areeachamendedto
readasfollows:
(1)Nothingcontainedinthischaptermaybeconstruedtopreventagoverningbodyfrom
holdinganexecutivesessionduringaregularorspecialmeeting:
(a)(i)Toconsidermattersaffectingnationalsecurity;
(ii)Toconsider,ifincompliancewithanyrequireddatasecuritybreachdisclosureunder
RCW19.255.010and42.56.590,andwithlegalcounselavailable,informationregardingthe
infrastructureandsecurityofcomputerandtelecommunicationsnetworks,securityandservice
recoveryplans,securityriskassessmentsandsecuritytestresultstotheextentthattheyidentify
specificsystemvulnerabilities,andotherinformationthatifmadepublicmayincreasetheriskto
theconfidentiality,integrity,oravailabilityofagencysecurityortoinformationtechnology
infrastructureorassets;
(b)Toconsidertheselectionofasiteortheacquisitionofrealestatebyleaseorpurchase
whenpublicknowledgeregardingsuchconsiderationwouldcausealikelihoodofincreasedprice;
(c)Toconsidertheminimumpriceatwhichrealestatewillbeofferedforsaleorlease
whenpublicknowledgeregardingsuchconsiderationwouldcausealikelihoodofdecreasedprice.
However,finalactionsellingorleasingpublicpropertyshallbetakeninameetingopentothe
public;
(d)Toreviewnegotiationsontheperformanceofpubliclybidcontractswhenpublic
knowledgeregardingsuchconsiderationwouldcausealikelihoodofincreasedcosts;
(e)Toconsider,inthecaseofanexporttradingcompany,financialandcommercial
informationsuppliedbyprivatepersonstotheexporttradingcompany;
(f)Toreceiveandevaluatecomplaintsorchargesbroughtagainstapublicofficeror
employee.However,upontherequestofsuchofficeroremployee,apublichearingorameeting
opentothepublicshallbeconducteduponsuchcomplaintorcharge;
(g)Toevaluatethequalificationsofanapplicantforpublicemploymentortoreviewthe
performanceofapublicemployee.However,subjecttoRCW42.30.140(4),discussionbya
governingbodyofsalaries,wages,andotherconditionsofemploymenttobegenerallyapplied
withintheagencyshalloccurinameetingopentothepublic,andwhenagoverningbodyelects
3
This section 13 is from Second Substitute Senate Bill 5532, Chapter 153, Laws of 2022.
7
totakefinalactionhiring,settingthesalaryofanindividualemployeeorclassofemployees,or
dischargingordisciplininganemployee,thatactionshallbetakeninameetingopentothepublic;
(h)Toevaluatethequalificationsofacandidateforappointmenttoelectiveoffice.
However,anyinterviewofsuchcandidateandfinalactionappointingacandidatetoelectiveoffice
shallbeinameetingopentothepublic;
(i)Todiscusswithlegalcounselrepresentingtheagencymattersrelatingtoagency
enforcementactions,ortodiscusswithlegalcounselrepresentingtheagencylitigationorpotential
litigationtowhichtheagency,thegoverningbody,oramemberactinginanofficialcapacityis,
orislikelytobecome,aparty,whenpublicknowledgeregardingthediscussionislikelytoresult
inanadverselegalorfinancialconsequencetotheagency.
Thissubsection(1)(i)doesnotpermitagoverningbodytoholdanexecutivesessionsolely
becauseanattorneyrepresentingtheagencyispresent.Forpurposesofthissubsection(1)(i),
“potentiallitigation”meansmattersprotectedbyRPC1.6orRCW5.60.060(2)(a)concerning:
(i)Litigationthathasbeenspecificallythreatenedtowhichtheagency,thegoverningbody,
oramemberactinginanofficialcapacityis,orislikelytobecome,aparty;
(ii)Litigationthattheagencyreasonablybelievesmaybecommencedbyoragainstthe
agency,thegoverningbody,oramemberactinginanofficialcapacity;or
(iii)Litigationorlegalrisksofaproposedactionorcurrentpracticethattheagencyhas
identifiedwhenpublicdiscussionofthelitigationorlegalrisksislikelytoresultinanadverse
legalorfinancialconsequencetotheagency;
(j)Toconsider,inthecaseofthestatelibrarycommissionoritsadvisorybodies,western
librarynetworkprices,products,equipment,andservices,whensuchdiscussionwouldbelikely
toadverselyaffectthenetwork’sabilitytoconductbusinessinacompetitiveeconomicclimate.
However,finalactiononthesemattersshallbetakeninameetingopentothepublic;
(k)Toconsider,inthecaseofthestateinvestmentboard,financialandcommercial
informationwhentheinformationrelatestotheinvestmentofpublictrustorretirementfundsand
whenpublicknowledgeregardingthediscussionwouldresultinlosstosuchfundsorinprivate
losstotheprovidersofthisinformation;
(l)Toconsiderproprietaryorconfidentialnonpublishedinformationrelatedtothe
development,acquisition,orimplementationofstatepurchasedhealthcareservicesasprovided
inRCW41.05.026;
(m)Toconsiderinthecaseofthelifesciencesdiscoveryfundauthority,thesubstanceof
grantapplicationsandgrantawardswhenpublicknowledgeregardingthediscussionwould
reasonablybeexpectedtoresultinprivatelosstotheprovidersofthisinformation;
(n)Toconsiderinthecaseofahealthsciencesandservicesauthority,thesubstanceof
grantapplicationsandgrantawardswhenpublicknowledgeregardingthediscussionwould
reasonablybeexpectedtoresultinprivatelosstotheprovidersofthisinformation;
8
(o)Toconsiderinformationregardingstaffprivilegesorqualityimprovementcommittees
underRCW 70.41.205.
(p)Toconsiderproprietaryorconfidentialdatacollectedoranalyzedpursuanttochapter
70.---RCW(thenewchapterTitle 70 RCWon prescription drug affordability).
(2) Before convening in executive session, the presiding officer of a governing body shall
publicly announce the purpose for excluding the public from the meeting place, and the time when
the executive session will be concluded. The executive session may be extended to a stated later
time by announcement of the presiding officer.
Sec. 12.RCW 42.30.110 and 2019 c 162 s 2 are each amended toread as follows:
(2) Before convening in executive session, the presiding officer31 of a governing body
shall publicly announce the purpose for excluding the public from the meeting place, and the time
when the executivesession will be concluded. The executive session may be extended to astated
later time by announcement of the presiding officer. The announced purpose of excluding the
public must be entered into the minutes of the meeting required by RCW 42.30.035.
NEW SECTION.Sec. 13.A new section is added to chapter 42.30 RCW to read as follows:
(1)Except in an emergency situation, the governing body of a public 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. If
the governing body accepts written testimony, this testimony must be distributed to the governing
body. The governing body may set a reasonable deadline for the submission of written testimony
before the meeting.
(2)Upon the request of any individual who will have difficulty attending a meeting of
thegoverning body of a public agency by reason of disability, limited mobility, or for any other
reason that makes physical attendance at a meeting difficult, the governing body shall, when
feasible, provide an opportunity for that individual to provide oralcomment at the meeting
remotely if oral comment from other members of the public will be accepted at the meeting.
(3)Upon the request of any individual who will have difficulty attending a meeting of
the governing body of a public agency by reason of disability, limited mobility, or for any other
reason that makes physical attendance at a meeting difficult, the governing body shall, when
feasible, provide an opportunity for that individual to provide oral comment at the meeting
remotely if oral comment from other members of the public will be accepted at the meeting.
(4)Nothing in this section prevents a governing body from allowing public comment
on items not on the meeting agenda.
(5)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.
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Sec. 14.RCW 42.30.900 and 1971 ex.s. c 250 s 16 are eachamended to read as follows:
This chapter may be known and cited as the ((“Open Public28 Meetings Act of 1971”.))
Washington state open public meetings act or29 OPMA.
NEW SECTION.Sec. 15.Sections 5 through 11 of this act arenecessary for the immediate
preservation of the public peace, health,or safety, or support of the state government and
its existing publicinstitutions, and take effect immediately.
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