A board should also consider records laws if using evaluation forms. For example, the evaluation forms may have retention requirements under RCW 40.14, and could be the subject of a public records request under RCW 42.56.
10.Can a board conduct or authorize the conducting of an informal “poll” of a quorum outside a public meeting to get board members’ feedback on applicants, determine the finalists, or determine a preferred final candidate? For example, board members would be polled by email, text, phone, or through in-person contacts. This polling could be by another board member, search firm, board staff member, or other person acting on behalf of the board. Likely no. There is no court decision precisely on point in this state where a court has found that a board conducted an unauthorized poll in violation of the OPMA. However, the language of the OPMA and other court rulings indicate our courts could find that polling activity violates the OPMA, depending on the facts. Here is more information. Action and Final Action . The broad definition of agency “action” includes discussions of agency business among a quorum; the OPMA is to be “liberally construed.” RCW 42.30.020(3); RCW 42.30.910. “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).
Balloting.
Secret ballots (voting outside the public eye) are not permitted. RCW
42.30.060(2).
Case Summaries . The Supreme Court held that the purpose of the OPMA is to permit the public to “observe all steps” in the making of governmental decisions by a board. Cathcart v. Andersen. In Wood v. Battle Ground School District , the Court of Appeals found that an exchange of emails discussing agency business where a quorum of a board participates can violate the OPMA. In Wood the court also held that the OPMA does not require the contemporaneous physical presence of board members in order to constitute a meeting.
In Miller v. City of Tacoma the Supreme Court held that informal balloting of a quorum outside the public eye (in that case, in an executive session) violated the OPMA.
In Eugster v. City of Spokane (2002) the Court of Appeals described that when the facts show members are “polled” outside of a meeting and have knowledge they are acting in concert with others, that activity may lead to a conclusion that the members knowingly violated the OPMA.
In Citizens Alliance for Property Rights Legal Fund v. San Juan County the Supreme Court held that if communications among a quorum show a “collective intent” to meet to
FAQ June 1, 2016
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