transact the governing body’s official business, then a meeting subject to the OPMA has occurred. Under these authorities, a process of polling of a quorum of a board in order to learn a quorum’s views of the applicants or to see how a quorum may vote on an applicant --- whether polling is done by a board member, search firm, board staff member, or other person acting on behalf of the board --- might result in a complaint that the board has in effect taken “action” or “final action” (voted, or reached a consensus) outside the OPMA. This risk is presented if the board members know a quorum is being polled on agency business. If the complaint is upheld by a court, there can be legal consequences. See Question # 15.
Practice tips:
Board members, board staff, and search firms should exercise caution in contacting board members outside an open meeting to discuss applicants, and should not contact a quorum to get their views, votes, informal votes, straw votes, or consensus. Board members, staff and search firms should also be mindful that any emails, text messages, phone records, letters or other public records prepared, owned, used or retained by or on behalf of the board (agency) or a board member and which relate to the board’s search process may be subject to a request for public disclosure under the Public Records Act at RCW 42.56, and may have records retention requirements under RCW 40.14.
11.Can a board decide to narrow the applicants to several finalists or a finalist in executive session?
No, if “narrow the applicants” means a quorum ranks several applicants who will proceed to the next step in the selection process and eliminates other applicants from consideration. See Questions # 4 and # 10. Balloting on applicants, including on informal proposals (“action”) as well as “final actions” (a vote or development of a consensus), and straw votes, are not permitted in executive session. Miller v. City of Tacoma . Secret ballots are prohibited under the OPMA. RCW 42.30.060(2); Miller v. City of Tacoma . In other words, selecting the finalists in an executive session is not permitted.
Practice tips:
At a public meeting, a board should decide in advance of its search what process it will use to focus on applicants who it may want to interview and appoint or hire. See Question # 1.
FAQ June 1, 2016
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