Practice tips: A board should plan its search process with the OPMA’s requirements in mind. For example, a board should keep in mind the OPMA’s public notice provisions for regular and special meetings when developing its meeting agendas to discuss the search process and applicant evaluations and selections. RCW 42.30.077; RCW 42.30.080. It may be useful for a board to consider adopting a policy on how it wants to conduct searches when vacancies occur, particularly if vacancies are frequent. A board can then refer to or update that policy as needed and when vacancies occur. It may also be useful for a board to consider whether some of the search process steps can be handled by board staff such as a human resources department staff, contracts staff or a search firm. Those steps might include, for example, designing a search process, the contract award process for a search firm, posting or advertising the vacancy notice, accepting and processing applications, ensuring applications are complete and meet the minimum qualifications, scheduling interviews, doing background or reference checks, and the like. 3. A board wants to hire a search firm to assist it in the process to fill a vacancy. Can the board review proposals or bids from potential firms in an executive session, and/or select a search firm in executive session? No. The OPMA has no provision permitting boards to meet in a closed executive session to review proposals or bids from search firms (consultants), or to select a search firm in executive session. No Executive Sessions to Review Bids. The Supreme Court has held that unless an action is “explicitly specified” in the OPMA’s executive session provisions, a board cannot conduct that action in an executive session. Miller v. City of Tacoma . “Action” includes but is not limited to reviews and evaluations. RCW 42.30.020(3). “Action” such as review and evaluation of requests for proposals or bids from personnel search firms are not authorized in RCW 42.30.110(1)(d). Executive Session for Negotiations on Contract Performance . The OPMA provides an executive session can be held “to review negotiations on the performance of publicly bid contracts when public knowledge regarding such consideration would cause a likelihood of increased costs[.]” RCW 42.30.110(1)(d). (Emphasis added.) No court cases discussing this section have been located. However, based on the statutory language, this executive session provision at RCW 42.30.110(1)(d) assumes a contract is already in place and the board is reviewing negotiations on the existing contract’s “performance.” The legislative history of this provision confirms that reading. Thus, this
FAQ June 1, 2016
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