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HomeMy WebLinkAbout7.c Serial Meeting InformationSearch...  SECTIONS Ask MRSC Home >Stay Informed >MRSC Insight Blog >November 2020 > What Constitutes a Serial Meeting under the OPMA? What Constitutes a Serial Meeting under the OPMA? November 23, 2020 by Oskar Rey Category: Open Public Meetings Act The concept of “serial,” “rolling,” or “chain” meetings under the Washington Open Public Meetings Act (OPMA) is not new, but the dangers of serial meetings that violate the OPMA have expanded over time with the advent of new forms of communication. This blog article will review the basics of GO  Back to top MRSC - What Constitutes a Serial Meeting under the OPMA? https://mrsc.org/stay-informed/mrsc-insight/november-2020-1/what-is-a... 1 of 6 2/2/2024, 2:06 PM serial meetings and recent developments in case law.  A serial meeting occurs when a majority of members of a governing body have a series of smaller gatherings or communications that results in a majority of the body collectively taking action even if a majority is never part of any one communication. Such a meeting violates the OPMA because it amounts to taking “action” — as defined in RCW 42.30.020(3) — outside an open meeting. Serial meetings can occur with or without technology, but the range of communication options available nowadays to members of a governing body increases the risk. The Basics of Serial Meetings One of the earliest cases addressing serial meetings is Wood v. Battle Ground Sch. Dist., 107 Wn. App. 550, 27 P.3d 1208 (2001), which involved a five- member school district board. Shortly after three newly elected board members took the oath of office, they exchanged a series of emails between themselves and the other two members about the superintendent’s job performance. The Court of Appeals noted that the emails involved the active exchange of information and opinions between members as opposed to the “mere passive receipt of information,” which, by itself, would not be a violation of the OPMA.    Under RCW 42.30.120, a member of a governing body who knowingly violates the OPMA is subject to a civil fine of $500 for the first violation and $1,000 for each violation thereafter. In Wood, the court noted that although the defendants submitted declarations stating they did not know their emails violated the OPMA, at least one member raised OPMA concerns in the emails themselves. It should be noted that Wood was decided before the adoption of OPMA training requirements for elected officials in RCW 42.30.205. The Washington Supreme Court later confirmed that a serial meeting requires a “collective intent to meet” by the participants in the case Citizens Alliance v. San Juan County, 184 Wn.2d 428, 359 P.3d 753 (2015). The court found that an email and telephone exchange that included a majority of county commissioners was not a violation of the OPMA when there was no indication that the commissioners were aware that the communications included a majority of the governing body. Concerns about serial meetings arise when the communications, viewed as a whole, are between a majority of the governing body and amount to action  Back to top MRSC - What Constitutes a Serial Meeting under the OPMA? https://mrsc.org/stay-informed/mrsc-insight/november-2020-1/what-is-a... 2 of 6 2/2/2024, 2:06 PM under the OPMA. A more recent case, City of Seattle v. Kaseburg, 13 Wn. App. 2d 322, 467 P.3d 115 (2018), clarifies that communications between individual councilmembers and members of the broader community do not trigger serial meeting concerns. Since these were emails between individual councilmembers and the public, there was no evidence in Kaseburg that a majority of the governing body communicated with each other or took action outside an open public meeting. Serial Meetings over Multiple Forms of Communication In September 2020, the Washington Court of Appeals decided Egan v. City of Seattle, 471 P.3d 899 (2020), a case that illustrates the potential complexity of serial meeting scenarios. In Egan, the plaintiffs alleged that the repeal of a recently-adopted employee head tax violated the OPMA because the decision to do so was the result of a serial meeting. The case details over two dozen communications between individual councilmembers as well as city staff during a three-day period leading up to repeal of the head tax. Those communications included: • In-person meetings, • Emails, • Phone calls, • Text messages, and • Distribution of hard copies of a draft press release regarding repeal of the head tax. In addition, as part of its opinion, the court included a copy of a vote tally sheet prepared by an aide to one of the councilmembers. The court found that the in-person meetings, e-mails, phone calls, and text messages between and among the city council members could constitute a “meeting” under the OPMA if there was evidence that at least five members (a majority of the nine-member Seattle City Council) participated in and were aware that four others were participating in conversations about repealing the head tax. Under this test, none of the communications during the first two days constituted a “meeting” because there was no quorum participating in any of these communications and no evidence that any councilmember was aware of the communications between other councilmembers and with members of the mayor’s staff.  Back to top MRSC - What Constitutes a Serial Meeting under the OPMA? https://mrsc.org/stay-informed/mrsc-insight/november-2020-1/what-is-a... 3 of 6 2/2/2024, 2:06 PM However, the press release issued on the third day raised the possibility there was a serial meeting in violation of the OPMA. A draft of the release reviewed and agreed to by seven of the nine councilmembers stated: We heard you. It is time to hit reset. This week, instead of prolonging a fight, we are moving forward with legislation to repeal the current tax on large businesses to address the homelessness crisis – this bill has the support of a majority of the City Council. [emphasis added] The final press release did not contain the underscored language — it may have been removed on advice of legal counsel. At any rate, the court found that prior agreement between members on how they will vote is “action” under the OPMA, stating: We thus conclude if a quorum of a legislative body, such as the city council, collectively commits or promises to each other to vote — as a group — in favor of or in opposition to a piece of pending legislation at a future public meeting, then such a commitment may be evidence that a majority of the body attended a “meeting” with the collective intent to take an “action” in violation of the OPMA. The court remanded the case for further proceedings on whether there was a collective decision to vote on the head tax repeal outside a public meeting. The Role of the Public Records Act and the Importance of Open Government Training The Public Records Act (PRA) is a powerful tool when members of the public believe that a governing body has taken action in violation of the OPMA. Officials subject to the OPMA need to be aware that their written and electronic communications relating to agency business are public records and will be subject to disclosure under the PRA unless a specific exemption applies. Using personal devices or accounts to exchange information with other members of the governing body will not cloak such communications from public view. Washington courts have established procedures by which public records on personal devices or accounts may be retrieved and disclosed. We live in a world where the options for communicating are increasing rapidly. Social media is prevalent, as are applications such as Slack, and platforms such as Zoom, Microsoft Teams, and GoToMeeting. During a  Back to top MRSC - What Constitutes a Serial Meeting under the OPMA? https://mrsc.org/stay-informed/mrsc-insight/november-2020-1/what-is-a... 4 of 6 2/2/2024, 2:06 PM Sample Documents Topics pandemic in which in-person meetings are restricted or prohibited, these forms of communications have become central to how we talk to one another. As a result, understanding the requirements of the OPMA is of vital importance.  MRSC has additional information on OPMA-related training and avoiding OPMA violations: • OPMA and PRA Training Requirements for Government Officials. • Tips for Avoiding OPMA Violations. • You’ve Been Elected, Now What? 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. About Oskar Rey Oskar Rey has practiced municipal law since 1995 and served as Assistant City Attorney for the City of Kirkland from 2005 to 2016, where he worked on a wide range of municipal topics, including land use, public records, and public works. Oskar is a life-long resident of Washington and graduated from the University of Washington School of Law in 1992. VIEW ALL POSTS BY OSKAR REY Budgets Contracts/Agreements Fee/Rate Schedules Forms Franchises Economic Development Environment Finance Governance Legal  Back to top MRSC - What Constitutes a Serial Meeting under the OPMA? https://mrsc.org/stay-informed/mrsc-insight/november-2020-1/what-is-a... 5 of 6 2/2/2024, 2:06 PM Stay Informed Subscribe to E-Newsletters MRSC Insight Blog   Related Services www.mrscrosters.org MRSC is a statewide resource that provides general legal, finance, and policy guidance to support local government entities in Washington State pursuant to chapter 43.110 RCW. MRSC website content is for informational purposes only and is not intended as legal advice, nor as a substitute for the legal advice of an attorney. You should contact your own legal counsel if you have a question regarding your legal rights or any other legal issue. © 2024 Municipal Research and Services Center of Washington (MRSC). All rights reserved. Privacy & Terms. Follow us: Job Descriptions Ordinances/Resolutions Other Documents Policies/Procedures RFP/RFQ/Bid Documents Management Parks and Recreation Personnel Planning Public Safety Public Works and Utilities Transportation  Back to top MRSC - What Constitutes a Serial Meeting under the OPMA? https://mrsc.org/stay-informed/mrsc-insight/november-2020-1/what-is-a... 6 of 6 2/2/2024, 2:06 PM OPMA – ELECTRONIC COMMUNICATIONS PRACTICE TIPS FOR LOCAL GOVERNMENTS Page 1 of 2 OPMA – ELECTRONIC COMMUNICATIONS Practice Tips FOR LOCAL GOVERNMENTS These practice tips are intended to provide practical information to local government officials and staff about how electronic communications are treated under the Open Public Meetings Act (OPMA), chapter 42.30 RCW. For more information and resources visit mrsc.org/opma. ELECTRONIC COMMUNICATIONS CAN CREATE AN ILLEGAL “SERIAL” MEETING If you, as a member of the governing body (e.g., city council, board of commissioners, planning commission), communicate with other members of the governing body by electronic means (email, chat, text message, or using social media), keep in mind that exchanges involving a majority of members of the governing body can be considered an illegal “meeting” under the OPMA. What types of electronic exchanges can constitute a meeting? If a majority of the members of the governing body takes “action” on behalf of the agency through email or other electronic means, that would constitute a meeting under the OPMA. “Action” under the OPMA includes mere discussion of agency business. The participants in the email or other electronic exchange don’t have to be participating in that exchange at the same time, because a “serial” or “rolling” meeting happens when a majority of the body are eventually involved in the exchange. However, the participants must collectively intend to meet to conduct agency business. Tips: As a member of the governing body, consider the following to avoid potential OPMA violations: • Passive receipt of information is permissible, but discussion of issues by any means by a majority of the governing body can constitute a meeting. • A message to a majority or more of your colleagues on the governing body is allowed if the message is to provide only documents or factual information, such as emailing a document to all members for their review prior to the next meeting. • If you want to provide information or documents via email to a majority of members of the governing body, especially regarding a matter that may come before the body for a vote, have the first line of the email clearly state: “For informational purposes only. Do not reply.” Consider also using the “BCC:” email line to prevent other members from replying to all recipients. • Unless for informational purposes only, don’t send an email to all or a majority of the governing body, and don’t use “reply all” when the recipients are all or a majority of the members of the governing body. • Have a designated staff member provide documents for meetings electronically or provide hard copies to each member. A staff member can communicate via email with members of the governing body in preparation for a meeting as long as the staff member does not share any replies with the other members of the governing body as part of the exchange. OPMA – ELECTRONIC COMMUNICATIONS PRACTICE TIPS FOR LOCAL GOVERNMENTS Page 2 of 2 PHONE CALLS AND VOICE MESSAGES CAN CONSTITUTE A MEETING If a majority of the members of the governing body takes “action” through a series of phone calls or voice mail exchanges, that would constitute a meeting. Such a “telephone tree” occurs, for example, when members call each other to form a majority decision. These calls and messages can constitute a serial or rolling meeting if the members collectively intend to meet and conduct agency business. Tip: Be on the look out for mixed media. A conversation need not be held entirely in the same format for a rolling or serial meeting to occur. For example, an in-person conversation might be continued on by email and then transition to text messages or comments on a social media site. KEY EXCEPTION TO CALLING A SPECIAL MEETING Under RCW 42.30.080, a special meeting (in contrast to a regular meeting) may be called at any time by the presiding officer of the governing body or by a majority of the members of the governing body. Because the statute says “at any time” we believe a majority of the members of the governing body can confer outside of a public meeting for the sole purpose of discussing whether to call a special meeting. This includes conferring for that purpose via phone or any electronic means. USE OF SOCIAL MEDIA CAN IMPLICATE THE OPMA If members of the governing body use social media (e.g., through a Facebook page or Twitter feed) to host a discussion about issues related to the agency and the discussion includes comments from a majority of the members of the governing body, that discussion could constitute a public meeting under the OPMA. There’s no authority under the OPMA regarding what would constitute adequate public notice – if that’s even possible – for this kind of virtual meeting, so it’s best to avoid this type of discussion on social media. Tip: Social media can be an effective tool to solicit comments from the public, but social media shouldn’t be used by your agency’s governing body to collectively formulate policy or accept public testimony. FAILURE TO COMPLY WITH THE OPMA CAN BE COSTLY Violation of the OPMA can result in personal liability for officials who knowingly violate the OPMA and can invalidate agency actions taken at a meeting at which an OPMA violation occurred. Attorney fees and court costs are awarded to successful OPMA plaintiffs. OPMA violations can also lead to a loss of public trust in the agency’s commitment to open government. DISCLAIMER: These practice tips are meant to provide practical information to local government officials and staff about electronic records and requirements under the OPMA. The tips aren’t intended to be regarded as specific legal advice. Consult with your agency’s attorney for guidance on specific situations. WEB-23-0048: UPDATED JUNE 2023 1.800.933.6772 MRSC@MRSC.org MRSC.org