Executive session authority is “narrowly interpreted.” Id. “Action” that goes beyond the scope of what is permitted in executive session violates the OPMA. Id.
Violations. Board actions that violate the OPMA can result in litigation, as well as a possible court determination that a board decision made outside the OPMA’s requirements is null and void. And, a court may impose penalties against members for knowing violations. RCW 42.30.060; RCW 42.30.120; RCW 42.30.130.
2. A board will be designing the search process for the board to fill a vacancy either on the board or at the agency. Must the board discuss that process in an open public meeting? Yes. When a quorum of a board meets to take agency action, that meeting must be held in public unless the OPMA authorizes a session closed to the public. If the board reserves to itself the authority to make those search process decisions, or a law requires that only the board can make those decisions, those search process board discussions and decisions must be conducted in a meeting open to the public. An executive session closed to the public is not authorized for discussions of search processes for the board to fill a vacancy. Examples. The types of search process discussions and decisions by a board quorum could include, for example: whether to adopt and the adoption of a policy or procedure governing the search process, whether to use a search firm (consultants), the role of the board in the search, the role of agency staff in assisting in the search, the role of a search firm, the timeline for the process, approval of the position description, procedures to submit applications, methods to determine finalists (including whether to appoint a committee to assist the board and the committee’s role), interview procedures, agreed-to questions that will be asked of applicants, procedures to notify applicants of selection/rejection, and other search process discussions and decisions of the board. Committees. If a board delegates to a committee of the board the authority to design the search process on behalf of the board, the committee would also be subject to the OPMA. If the board reserves to itself the design of the search process, but seeks only input or advice from a committee it creates, the committee would not be subject to the OPMA. Citizens Alliance for Property Rights Legal Fund v. San Juan County. See Question # 6. Staff/Search Firms . A board can also direct its staff or its search firm to design the process, without those staff or firm activities being subject to the OPMA. “When a governing body directs its staff to develop a plan of action and the staff creates a committee to develop the plan, the staff, not the governing body has created the committee. That is the nature of organizations: the governing body decides on policy and orders the staff to implement the policy, and the staff complies.” Citizens Alliance for Property Rights Legal Fund v. San Juan County. See also Question # 3.
FAQ June 1, 2016
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