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Open Public Meetings Act in the Digital Age
Welcome Our presentation will begin shortly.
Send your questions via chat to be answered in
our QA session at the end of the webinar.
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Speakers
Author and Expert Heidi Maynard Director of
Policy and Legal
Presenter Colleen Miller Director of Leadership
Development
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Agenda

• 1200 p.m. Welcome and introductions
• 1203 p.m. Open Public Meetings Act
• Overview of OPMA
• Attending meetings via
• audio/video conferencing
• Communicating by text/e-mail
• Using social media
• Penalties for OPMA violations
• 1245 p.m. Questions and answers

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Of course, a disclaimer

• WSSDA does not provide legal advice.
• You should seek professional counsel before
  acting upon any information or comments in this
  webinar
• No information is to be considered to represent
  the position of WSSDA on any specific legal
  matter.

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Open Public Meetings Act (OPMA) A brief review

• Chapter 42.30, RCW Open Public Meetings Act
• Enacted 1971
• Borrows heavily from California law and Floridas
  Sunshine Law

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Open Public Meetings Act (OPMA) A brief review

• RCW 42.30.020
• All meetings of the governing body of a public
  agency shall be open and public and all persons
  shall be permitted to attend any meeting of the
  governing body of a public agency

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Open Public Meetings Act (OPMA) A brief review

• RCW 42.30.030
• Public agency means Any state board,
  commission, department, educational institution,
  o other state agency which is created by or
  pursuant to statute, other than the courts and
  the legislature. In other words, school boards.

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What is a meeting under OPMA?

• Meeting means a meeting at which action is
  taken.
• RCW 42.30.020

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What is an action under OPMA?

• Action means the transaction of the official
  business of a public agency by a governing body
  including but not limited to receipt of public
  testimony, deliberations, discussions,
  considerations, reviews, evaluations, and final
  actions.
• RCW 42.30.020

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What is considered a final action under OPMA?

• 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

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Types of meetings
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Regular meetings

• School boards should have policies announcing
  date, time and place of regular meetings of the
  board.
• Must meet at least once per month.
• Agenda is not required, but is good practice. It
  is a public record.
• Minutes are required by law. They are also public
  records.
• May include executive session.

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Regular meetings

• What should minutes include?
• Date, time and place of meeting
• Presiding officer
• Members of the board in attendance
• Items discussed
• Motions made and results of votes on motions
• Any action to adjourn to executive session with
  a general statement of purpose
• Time of adjournment.

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Special meetings

• Defined in RCW 42.30.080 as any meeting of the
  board that is not a regular meeting or called in
  an emergency situation.
• May be called by the board president, chair or a
  majority of the board.
• Each member must receive written notice at least
  24 hours before the meeting. Media outlets
  registered with the district should receive same
  notice at least 24 hours before the meeting.

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Special meetings

• If the meeting location changes from the central
  office, notice must be posted on the website,
  the door of the central office and the door of
  the new location.
• An agenda is required in advance of the meeting.
  The board cannot take final action at a special
  meeting on any matter not on the original notice
  and agenda. Minutes are also required by law.
• Can be held for purposes of holding an executive
  session.

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Emergency meetings

• May be called to deal with emergencies involving
  injuries to person or property or the likelihood
  of injury if the time requirement would increase
  the likelihood or severity of injury or damage.
• Fire, flood, earthquake or other emergencies are
  grounds for holding a meeting at another time or
  site. Notice requirement is suspended.
• Ask Under the circumstances, is it reasonable to
  adhere to notice requirements?

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Closed (exempt) meetings

• No public notice or access is required for a
  board to gather for
• Collective bargaining discussions
• Quasi-judicial hearings (discipline matters
  involving students and staff). Witnesses need to
  testify may be present. Person appealing the
  discipline may choose to have people present.
  HOWEVER, the hearing is closed to the general
  public.
• FERPA requires that student information in
  discipline matters remain confidential.

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Is it necessary to hold an open public meeting?

• Board retreat YES
• Meeting with other jurisdiction like a tribal
  council YES
• Interviews of candidates for Superintendent YES
• Staff retreat YES
• Study session YES
• Taking testimony YES
• School-community forum LIKELY
• Committee meetings LIKELY
• Conducting hearings LIKELY
• Training session NOT LIKELY
• Collective bargaining strategy sessions NO
• Student/staff discipline appeals NO

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Remember

• Under OPMA, a meeting occurs whenever a quorum
  (majority) of board members takes action. Action
  is not limited to voting. It includes
  deliberation, discussion and consideration.

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The board that likes to get together

• It shall not be a violationfor a majority of
  members of a board to travel togetheror gather
  for purposes other than a regular or special
  meetingPROVIDED that they take no action.
• RCW 42.30.070
• So, traveling together, attending church and
  social gatherings together are fine, just dont
  talk shop!

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Board packet

• Q Who gets a board packet?
• A Under the Public Records Act, the public can
  request the agenda and most of the supporting
  material.
• Some supporting material is exempt for the PRA,
  including identifying student information,
  private information about employees, preliminary
  briefing documents (which can be kept private
  until final decision) etc.

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Board packet

• Best practice
• If your board packet contains any type of
  sensitive information, consult your district
  counsel prior to releasing the packet to the
  public. Note that response time for a Public
  Records Request is 5 business days.

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Getting to know you

• You can ask for members of the public to sign
  in, provide personal information or complete a
  questionnaire, BUT, Dont require it as a
  condition of attendance.
• RCW 42.30.040

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Be ready for your close-up

• Yes. A board may not prohibit the public (this
  includes board members) from taping a meeting if
  the taping is done in a reasonable manner that
  does not disrupt the meeting.
• Attorney Generals Opinion, 1998 No. 15

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Public comment

• A tradition that serves the community and school
  board well.
• NOT required by law.
• Should enhance, not hinder, the transaction of
  the boards business.
• Boards should be diligent in allowing public
  comment on appropriate issues BUT shouldnt
  surrender control of the agenda to the public.

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Everyones favorite board meeting attendee

• OPMA only requires (RCW 42.30.030) that the
  public can attend a board meeting. OPMA does not
  allow the public to become unruly or disruptive
  at a meeting.

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Youre outta here!

• Four steps to ejection
• Limit unruly attendees speaking time.
• Instruct the unruly attendee as to rules of
  courtesy.
• Remove the unruly attendees privilege to speak.
• Eject the unruly attendee for disorderly conduct
  by
• Clearing the meeting room, then continuing the
  meeting OR
• Adjourning and selecting another location by
  majority vote
• Final votes may be taken only on matters
  appearing on the original agenda.

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The hijacked board meeting

• In the event a meeting is interrupted by a group
  or groups of persons so as to render the orderly
  conduct of such a meeting unfeasible and order
  cannot be restored by the removal of individuals
  who are interrupting the meeting, the members of
  the board may order the meeting room cleared
  and continue in session or may adjourn the
  meeting and reconvene at another location
  selected by majority vote of the members. Final
  disposition may be taken only on matters
  appearing on the agenda. DONT FORGET TO LET THE
  MEDIA BACK IN!
• RCW 42.30.050

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What about committees?

• OPMA applies to committees of the school board
  when the committee acts on behalf of the
  governing body, conducts hearings, or takes
  testimony or public comment.
• RCW 42.30.020(2)

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What does acts on behalf of a governing body
mean?

• Attorney Generals Opinion 1986, No. 16
• A committee acts on behalf of a governing body
  when it exercises actual or de facto
  decision-making power Such a committee is
  subject to the OPMA whenever it meets to
  conduct business related to the exercise of its
  decision-making power. An advisory committee is
  not subject to OPMA.

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What does acts on behalf of a governing body
mean?

• ALSO
• Attorney Generals Opinion 2010, No. 9
• If a quorum of a governing body takes action at a
  committee meeting by, for example, merely sitting
  in the audience and considering the official
  board business discussed by the committee or
  receiving public testimony, it is not sufficient
  to rely on the notice for the committee meeting
  alone. This is a meeting of the governing body
  and must be separately noticed.
• Best practice When in doubt, committee meetings
  should be open and public and proper notice
  should be given.

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What about executive sessions?

• OPMA allows parts of board meetings to be held
  without the public if they are being held to
  discuss at least one of the following topics
• Matters affecting national security, RCW
  42.30.110 (1)(a)
• Selection of a site or acquisition of real estate
  if public knowledge might increase the price,
  1(b)
• Minimum selling price of real estate if public
  knowledge might depress the price (BUT final
  action selling or leasing must take place in a
  public meeting), 1(c)

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What about executive sessions?

1. Negotiations on performance of a publicly bid
   contract if public knowledge might increase
   costs, 1(d)
2. Complaints or charges against an employee or
   board member (HOWEVER the person involved may
   open the meeting to the public), 1(f)
3. Qualifications of an applicant for public
   employment or review of the performance of public
   employee (e.g., Superintendent) BUT, final action
   must be taken in public and discussion of
   salaries and wages and other conditions of
   employment must take place in public AND
   discussions affecting employees generally must be
   held in public. (1)(g)

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What about executive sessions?

1. Qualifications of a candidate for appointment to
   elective office, BUT interviews and final
   appointment must be conducted in public. (1)(h)
2. Discussion with legal counsel regarding
   enforcement actions, litigation or potential
   litigation if public discussion might result in
   adverse legal or financial consequence. (1)(i)
3. NEW Consideration of proprietary or confidential
   non-published information related to the
   development, acquisition or implementation of
   state purchased health care services as provided
   in RCW 41.05.026. (1)(l)

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Executive session statement of purpose

• The agenda should contain a statement of purpose
  for the executive session.
• The statement of purpose should be sufficient to
  make it clear that the subject matter fits one of
  the statutory exceptions for an executive
  session.
• Best practice for agenda and/or minutes is to
  cite the precise subsection of the statute.
• Example Executive session to evaluate the
  performance of a public employee, as authorized
  by RCW 42.30.110 (1)(g) - 800 p.m. to 900 p.m.

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Remember

• Any records or documents taken into or made
  during executive session may be subject to public
  record requests.

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Virtual attendance at board meetings

• OPMA does not require physical presence to attend
  a meeting.
• Under Roberts Rules of Order, some or all
  members may attend electronically as long as
  there is, at a minimum, simultaneous aural
  communication between board members. This is
  essential to the deliberative character of a
  board meeting.

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Best practices for meeting virtually/electronicall
y

• Taking OPMA and Roberts into account, a board
  meeting may be held in which some or all members
  attend by phone or videoconference as long as
• The meeting is properly noticed as to time/date
  and access codes or phone numbers required.
• The communication medium is accessible to members
  of the public and accommodates any member of the
  public who wishes to participate (platform should
  be made available at the central office).
• The communication medium shouldnt require
  specific training or education to use.

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Best practices for meeting virtually/electronicall
y

• For board members and those providing public
  comment, make sure
• To identify caller(s) and authenticate them
  prior to the meeting.
• That caller(s) can hear the rest of the members.
• That caller (s) can be heard by the rest of the
  members.
• To stop and repeat if communication is
  interrupted.

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Wood v. Battle Ground School District (2001)

• An e-mail exchange by a quorum of board members
  about board business is a meeting under OPMA.
• Active exchange of e-mails triggers OPMA, mere
  passive receipt does not.
• Construes action under OPMA as forward looking
  communication about issues that may or will come
  before the board for a vote.
• HOWEVER City Council Scenario Its conceivable
  that debriefings about board issues by a quorum
  after a board meeting/vote could also be
  action. So a broader definition of action, like
  communication about board issues is probably a
  good idea.

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All about email

• DO
• Have one-way communication from board chair or
  staff to board members to distribute meeting
  notices, agendas, and materials or to schedule
  meetings.
• Discuss issues unrelated to board business, such
  as a social event.

• DONT
• Engage a quorum of board members in an exchange
  about official board business . This is a meeting
  that should be open to the public. Wood v. Battle
  Ground School Dist., 107 Wash.App. 550, 27 P3d
  1208 (2001).

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Practices that can lead to OPMA violations

• REPLY ALL
• Dont do it. Just dont.

Daisy chainsInformation passed from one board
member to another in order to avoid triggering
the quorum requirement of OPMA.
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Practices that can lead to OPMA violations

• Two by two aka Noahs Ark communication

Telephone/e-mail trees
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Practices that can lead to OPMA violations

• Using staff as a hub to conduct collective
  decisions/action.

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Personal communication

• Using personal email or a personal communication
  device to conduct board business is risky.
• Any e-mail account that contains e-mails about
  board business and any device holding text
  messages about board business is subject to
  public records request.
• If personal e-mails/texts are mixed in, they may
  be subject to exemption from disclosure but will
  need to be redacted at great expense to the
  district.

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Best practices for board members

• Use a separate e-mail account and device
  (district issued, if possible) for all board
  business
• If a constituent or any other member of the
  public contacts you at your personal e-mail
  address about board business, an appropriate
  response would be
• Dear Constituent
• I do not respond to e-mails/texts to my personal
  account. Please contact me at ________.
• Sincerely,
• Patty McPrivacy, Board President

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Boards and social media

• OPMA doesnt address social media like Facebook,
  Twitter, Pinterest or Instagram.
• HOWEVER, the case law on e-mail exchanges
  suggests that the same guidelines would apply to
  social media.
• When a quorum of board members engages in
  discussion on any social media platform about
  board business, its a meeting.

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Twitter and Facebook

• If your board or district wants its own social
  media page or feed, remember
• The PRA considers electronic records or posts
  created or received in the transaction of public
  business to be public records.
• Electronic records and posts must be identified,
  filed and retained just like records in other
  formats, according to the State Archivists
  Records Management Guidelines and General Records
  Retention Schedules.

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Twitter and Facebook

• Remember that in the case of a public records
  request for such records, you will need to look
  at your service contract with vendors and social
  media site operators. Ask Does the contract
  provide you sufficient control to ensure the
  posts are retained for the full retention period?
  
• Best practice Use available applications to
  capture social media records or, at the very
  least, take screen shots and only repost material
  on social media that has been posted on your
  website.

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Sending texts and emails during board meetings

• Board members, like the rest of the general
  public, use Smartphones and tablets during
  meetings. Thats fine, EXCEPT when
• Texts and/or e-mails occur between a quorum of
  board members about official board business. This
  is a meeting within a meeting in violation of
  OPMA.
• OR
• Texts an/or e-mails are used to conduct a secret
  poll or vote (prohibited by RCW 42.30.060).

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Other considerations

• Attentiveness to the actual board proceedings is
  diminished
• Persons making public comments perceive board
  members are ignoring them

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Remember

• Board member text messages and e-mails about
  board business are subject to public records
  request.
• Once request for them is made, dont
  delete/destroy!

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The cause of action

• Anyone can sue for an OPMA violation by filing
  for a writ of mandamus (court order requiring a
  governing body to do or refrain from an act they
  are obliged under law to do or to refrain from
  doing) or injunction to stop or prevent
  threatened violations.
• RCW 42.30.130

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The cause of action

• Party bringing the action must prove
• That a member of a governing body
• Attended a meeting of that body
• Where action was taken in violation of OPMA and
• The member had knowledge that the meeting
  violated OPMA.
• RCW 42.30.060 Any action taken as to adoption of
  any ordinance, resolution, rule, regulation,
  order or directive except in a meeting open to
  the public is NULL and VOID.

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Penalties for violating OPMA

• A violation of OPMA is a civil offense.
• Each member of the governing body who attends a
  meeting where action is taken in violation OPMA
  with knowledge of the factshall be subject to
  personal liability in the form of a civil penalty
  of 100 (RCW 42.30.120)
• Can be used as grounds for recall.

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Loser pays (sort of)

• A person who prevails against a public agency for
  a violation of OPMA will be awarded all costs,
  including reasonable attorneys fees incurred
  with legal action.
• Any public agency who prevails be awarded
  reasonable expenses and attorney fees if the
  trial judge finds the action was frivolous and
  advanced without reasonable cause.

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What can board members do if they become aware
theyve violated OPMA?

• Remedy the situation as soon as possible
  (preferably at the next board meeting) by
  announcing the action not conducted in an open
  public meeting and by taking the action again in
  the open meeting.
• Case law suggests that prompt action along these
  lines might be viewed in the boards favor in a
  suit alleging an OPMA violation
• Eugster v. City of Spokane, 110 Wn. App. 212, 39
  P.3d 380 (2002)
• Henry v. Town of Oakville, 30 Wn. App. 240, 633
  P.2d 892(1981)

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Questions and answers
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I would trade all my technology for an
afternoon with Socrates. Steve Jobs, Newsweek,
2001
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Thank you for attending!
A recording of this event will be available on
our website within a week.
www.wssda.org