Non-elected Positions. Board decisions to fill a vacant non-elected position, which is often an employment position (such as a director or administrator employed by the board), may present different considerations for some boards or some vacant positions. In those situations, some applicants may indicate a need to retain some measure of confidentiality through some parts of the search process in order to not jeopardize their current employment. (And, as discussed in Question # 14, those employment applications are exempt from public disclosure under the Public Records Act). Therefore, on the one hand, for non-elected positions, there is a view that a board could consider using a “Candidate A, Candidate B, Candidate C” or similar designation in the board’s public discussions to narrow the applicants, or to discuss a possible apparent finalist, so long as the successful candidate is publicly chosen and identified (see next paragraph). 1 On the other hand, there is a point of view that such a designation may be considered a form of an unauthorized secret ballot. 2 Some agencies, as a matter of historical practice, make finalists’ names publicly known through search procedures such as a “meet the candidates” forum. There is no appellate court decision precisely on this point. A board should carefully consider its procedures, and consult with its legal counsel if it has questions about its process. Final Action. Lastly, “final action” hiring a person to fill a vacancy and setting his/her salary must be taken in public. RCW 42.30.110(1)(g). So, if a board had been using a “Candidate A, Candidate B, Candidate C” or similar designation in earlier stages of the search process, in a public meeting it must disclose the name of the person the board chooses to hire. 1 As noted, no State appellate OPMA decision has been located addressing the Candidate A, B, C board discussion option. There have been differing views about the practice over the years. For example, in 1995, a King County Superior Court considered arguments in an OPMA case where it was acknowledged that the names of the applicants would not be disclosed. Counsel for the Plaintiff Seattle Times described in oral argument that an assigned letter for candidates could be used in the board’s public discussion of applicants. Seattle Times v. University of Washington et al ., Case No. 95-2-04364-0; see also “Judge: Interviews for UW President Can Be in Private – Certain Aspects of Search Must Be Open , Seattle Times (March 3, 1995) (confirming Plaintiff’s position that applicants’ names could be withheld). With respect to a different view, the Municipal Research and Services Center (MRSC) in a 2012 Q & A for hospital districts described that in its opinion assigning numbers to candidates is not permitted by the OPMA. See “Ask MRSC – Hospital District Edition” (2012). 2 RCW 42.30.060(2) provides, “No governing body of a public agency at any meeting required to be open to the public shall vote by secret ballot.” “Secret ballot” is not defined in the OPMA. RCW 42.30.060(2) was added to the OPMA in 1989. Chap. 42, Laws of 1989. Prior to that amendment, a formal Attorney General’s Opinion described a secret ballot as an “anonymous” vote. AGO 1971 No. 33. In Eugster v. City of Spokane (2005), the Court of Appeals found no violation of the OPMA’s secret ballot restriction when the identity of the board members supporting or rejecting a procedure was made known in a public meeting and there was no attempt to hide the identity of board members. In Miller v. Tacoma , the Court of Appeals held that secret balloting in violation of the OPMA occurred when a consensus was reached on a candidate in an executive session closed to the public. The OPMA does not specify any level of detail in a board’s discussion nor in a board action, such as the detail needed in the language in a motion. In the Candidate A, B, C scenario, the board’s discussion and action would occur in an open public meeting and the identity of the voting board members would be publicly known, so they are not anonymous. And, any “final action” (the vote of a quorum to hire a specific candidate and set his/her salary) would also occur in a public meeting, meaning that applicant’s name would be publicly disclosed during that meeting even if it had not been released earlier. RCW 42.30.110(1)(g).
FAQ June 1, 2016
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