In Citizens Alliance for Property Rights Legal Fund v. San Juan County (October 1, 2015), the Washington Supreme Court held that informal discussion groups are not “governing bodies” or “committees thereof” subject to the state’s open meetings laws. Prior to San Juan County updating its critical areas ordinances (CAO), a group of county council members, staff, and consultants met approximately 26 times to discuss implementing the CAO updates. Every aspect of the CAO Team was informal: the County Council did not formally create it; members were not formally appointed; and the Team had no formal purpose, no designated responsibilities, and no official relationship to other county departments. Further, the County’s governing body, the County Council, held approximately 100 different meetings, workshops, hearings, or joint hearings regarding the CAO update, all of which were presumably open to the public.
Nevertheless, Citizens Alliance sued to invalidate the ordinances, arguing the CAO Team improperly discussed the CAO update in meetings that did not comply with the Open Public Meetings Act (OPMA). The Court of Appeals ruled against Citizens. Citizens Alliance for Property Rights Legal Fund v. San Juan County, 181 Wn. App. 538 (2014). On further review, the Supreme Court also rejected Citizens’ arguments, emphasizing that the OPMA “does not extend to advisory committees and other entities that do nothing more than conduct internal discussions and provide advice or information to the governing body.” The Court then made a number of holdings clarifying the OPMA’s scope:
- The Court firmly rejected the “negative quorum” doctrine. The OPMA’s requirements apply to a governing body’s meetings only when a majority of its members are present. Having enough members present to block legislation is insufficient on its own. Here, even though 3 of 6 Council members may have been present at some of the CAO Team meetings (and could therefore have defeated future legislation), the CAO Team never had a 4 member majority of the Council present.
- For serial telephone and email communications to trigger the OPMA’s requirements, a majority of the governing body must participate in the communications and collectively intend to transact business. Passive receipt of emails does not count. Relaying telephone conversations does not count if the members on the call do not intend for the conversation to be incorporated into a later meeting.
- A “committee” is subject to the OPMA only when the governing body acts to create the committee and only if that committee “acts on behalf of the governing body.” In other words, the OPMA applies only when a committee exercises decision-making authority on behalf of the governing body that authorized the committee or ratified its actions. Here, the CAO Team did not implicate either element. The County Council did not create the Team, and the Team did not exercise decision-making authority for the Council. Gathering information, conducting internal discussions, and providing information to a governing body does not arise to “acting on behalf of the governing body.”