Did Mayor Rowe Act Illegally in only Partially polling councilmembers re Chief Walser

Did Mayor Rowe Violate the Open Meetings Act By "Polling"

Only Selected Council Members re Chief Walser?

YOU decide….

[Note: This was excerpted from the Municipal Research & Services Center http://www.mrsc.org and does not represent the complete Open Meetings Act.]

WHAT IS A "MEETING"?

There must be a "meeting" of a governing body for the Act to apply. Sometimes it is very clear that a "meeting" is being held that must be open to the public, but other times it isn't. To determine whether a governing body is having a "meeting" that must be open, it is necessary to look at the Act's definitions. The Act defines "meeting" as follows: "Meeting" means meetings at which action is taken. [ RCW 42.30.020(4).] That definition, however, is not helpful without a definition of "action," and that definition is:

"Action" means the transaction of the official business of a public agency by a governing body including but not limited to receipt of public testimony, deliberations, discussions, considerations, reviews, evaluations, and final actions. "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. [ RCW 42.30.020(3).]

Since a governing body can transact business when a quorum (majority) of its members are present, [ See, e.g., RCW 35A.12.120; 35.23.270; 35.27.280; 36.32.010.] it is conducting a meeting subject to the requirements of the Open Public Meetings Act whenever a majority of its members meet together and deal in any way with city or county business, as the case may be. This includes simply discussing some matter having to do with city or county business. Note that it does not matter if it is called a "workshop," a "study session," or a "retreat;" it is still a meeting if a quorum is addressing the business of the city or county. If a governing body just meets socially or travels together, it is not having a meeting subject to the Act as long as the members do not discuss city or county business. [ RCW 42.30.070.]

IF A MAJORITY OR MORE OF THE MEMBERS OF A GOVERNING BODY DISCUSS CITY OR COUNTY BUSINESS BY TELEPHONE, ARE THEY HAVING A MEETING SUBJECT TO THE ACT?

Since the members of a governing body can discuss city or county business together by telephone so as to be taking "action" within the above definition, the governing body is having a meeting subject to the Act when one or more of its members are communicating by telephone and a quorum of its members are communicating together. This type of meeting could take many forms, such as a conference call among a majority or more of the governing body, or where less than a majority is physically meeting together and other members are connected by conference call and the total number discussing city or county business represents a quorum. Since the public could not, as a practical matter, attend this type of "meeting," it would be held in violation of the Act.

Given the increasingly prevalent use of e-mail, the same considerations that apply to discussions by telephone may apply to discussions by e-mail. However, the law has yet to catch up with technology and it is not clear at present how the Act will apply, if at all, to electronic communications.

MAY ONE OR MORE MEMBERS OF A GOVERNING BODY "ATTEND" A MEETING BY TELEPHONE?

Although no courts in this state have addressed this question, it probably would be permissible for a member of a governing body to "attend" a meeting by telephone, if that member's voice could be heard by all present, including the public, and if that member could hear all that is stated at the meeting. Some sort of speaker phone equipment would, obviously, be necessary for this to occur. The governing body could, however, determine in its rules whether a meeting would be permissible where one or more members might attend by speaker phone.

MAY ONE MEMBER OF A LEGISLATIVE BODY CALL THE OTHER MEMBERS INDIVIDUALLY TO DETERMINE HOW THEY WOULD VOTE ON A MATTER?

This kind of telephone polling would violate the spirit and perhaps the letter of the Act. It is likely that this would be considered to be taking action, as that term is defined in RCW 42.30.020(3).

WHAT PROCEDURAL REQUIREMENTS APPLY TO ALL MEETINGS OF A GOVERNING BODY?

The following requirements and prohibitions apply to both regular and special meetings of a governing body:

All meetings must be open to the public. [ RCW 42.30.030.]
A member of the public may not be required as a condition of attendance to register his or her name or other information, or complete a questionnaire, or be required to fulfill any other condition precedent to attendance. [ RCW 42.30.040.]
The governing body may require the removal of members of the public who disrupt the orderly conduct of a meeting. If order cannot be restored by removal of individuals, the governing body may order the meeting room cleared and may continue in session or it may adjourn and reconvene the meeting at another location, subject to the limitations in RCW 42.30.050. [ That statute provides in relevant part as follows: In such a session, final disposition may be taken only on matters appearing on the agenda. Representatives of the press or other 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 or individuals not responsible for disturbing the orderly conduct of the meeting.]
Votes may not be taken by secret ballot. [ RCW 42.30.060(2). Any vote taken by secret ballot is null and void.]
Meetings may be adjourned or continued subject to the procedures in RCW 42.30.090, as discussed below.
The governing body may meet in executive (closed) session, but only for one of the reasons specified in and in accordance with the procedures identified in RCW 42.30.110. See discussion on executive sessions.

Although the Act gives the public the right to attend meetings, the public has no statutory right to speak at meetings. As a practical and policy matter, however, city and county legislative bodies generally provide the public some opportunity to speak at meetings.

HOW CAN A MAJORITY OF THE GOVERNING BODY AGREE OUTSIDE OF A FORMAL MEETING TO CALL A SPECIAL MEETING WITHOUT VIOLATING THE ACT?

Since a majority of the governing body, under RCW 42.30.080, may call a special meeting "at any time," it would indeed be an anomaly if, in calling for that meeting, the majority would be considered to have violated the Act. In our opinion, the only way to give effect to this statutory provision is to allow a majority to get together in some way (e.g., by phone, e-mail, in person, or through the clerk's office) to decide whether to have a special meeting, when to have it, and what matters it will deal with. The members could not discuss anything else, such as the substance of the matters to be discussed at the special meeting.

WHAT PROCEDURES MUST BE FOLLOWED TO HOLD AN EXECUTIVE SESSION?

Before a governing body may convene in executive session, the presiding officer must publicly announce the executive session to those attending the meeting by stating two things:

the purpose of the executive session, and
the time when the executive session will end.

The announced purpose of the executive session must be one of the statutorily-identified purposes for which an executive session may be held. The announcement must contain enough detail to identify the purpose as falling within one of those identified in RCW 42.30.110(1).

If the executive session is not over at the stated time, it may be extended only if the presiding officer announces to the public at the meeting place that it will be extended to a stated time. If the governing body concludes the executive session before the time that was stated it would conclude, it should not reconvene in open session until the time stated. Otherwise, the public may, in effect, be excluded from that part of the open meeting that occurs between the close of the executive session and the time that was announced for the conclusion of the executive session.

REASONS FOR EXECUTIVE SESSIONS:

TO RECEIVE AND EVALUATE COMPLAINTS OR CHARGES BROUGHT AGAINST A PUBLIC OFFICER OR EMPLOYEE. HOWEVER, UPON THE REQUEST OF SUCH OFFICER OR EMPLOYEE, A PUBLIC HEARING OR A MEETING OPEN TO THE PUBLIC SHALL BE CONDUCTED UPON SUCH COMPLAINT OR CHARGE; [ RCW 42.30.110(1)(F).]

For purposes of meeting in executive session under this provision, a "charge" or "complaint" must have been brought against a city or county officer or employee. The complaint or charge could come from within the city or county or from the public, and it need not be a formal charge or complaint. The bringing of the complaint or charge triggers the opportunity of the officer or employee to request that the discussion be held in open session.

As a general rule, city governing bodies that are subject to the Act do not deal with individual personnel matters. [ The civil service commission is an obvious exception. It, however, addresses personnel actions taken against a covered officer or employee, and it does so in the context of a formal hearing.] For example, the city council should not be involved in individual personnel decisions, as these are within the purview of the administrative branch under the authority of the mayor or city manager. [ An exception is where the council, in a council-manager city, may be considering a complaint or charge against the city manager.] This provision for holding an executive session should not be used as a justification for becoming involved in personnel matters which a governing body may have no authority to address.

To evaluate the qualifications of an applicant for public employment or to review the performance of a public employee. However, subject to RCW 42.30.140(4), discussion by a governing body of salaries, wages, and other conditions of employment to be generally applied within the agency shall occur in a meeting open to the public, and when a governing body elects to take final action hiring, setting the salary of an individual employee or class of employees, or discharging or disciplining an employee, that action shall be taken in a meeting open to the public; [ RCW 42.30.110(1)(g).]