executive session provision is limited in scope and does not authorize an executive session for a board to review proposals or bids from search firms seeking to enter into a contract with the board/agency. No Executive Sessions for “Personnel Matters.” The OPMA does not authorize a board to hold an executive session for discussions related to “personnel matters” generally. See Question # 4. Executive Session for Pending or Potential Litigation . If a board believes there is “pending” or “potential litigation” concerning “legal risks” of its proposed action with respect to a search firm selection when public discussion of the legal risks “is likely to result in an adverse financial or legal consequence” to the board, the board may go into executive session with its legal counsel. RCW 42.30.110(1)(i). See that statute for more information. The Supreme Court has held that when board members act “independently and individually” to examine bid documents, no OPMA violation occurs. Equitable Shipyards v. State. Independent Review of Bid Documents. Summary. If a board is evaluating proposals and bids when selecting a search firm contractor, its discussions of a quorum and decision by a quorum must be conducted in a meeting open to the public. This would include, for example, in-person presentations by bidders to the board. Board members can, however, independently and individually review bid documents in advance of a meeting, so long as a quorum does not discuss those documents outside of a public meeting.
Practice tips:
A board may be subject to bid procedures in various laws. Therefore, it may be useful for board staff to work with the agency’s attorneys to review those laws in advance of a search if the board will be participating in the search firm contracting decisions. It may also be useful for the board to consider a process where staff review the bids and either retain the firm, or recommend to the board which firm to retain. In designing search processes, boards may also wish to consider whether the bid documents would be subject to public disclosure, and whether other laws govern bid procedures. See Equitable Shipyards v. State; RCW 42.56. It may also be useful for the board to provide a copy of this FAQ to its staff, attorneys, or other persons assisting it in its search and its search firm contracting procedures.
FAQ June 1, 2016
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