Pre-Incorporation Attorney General of WA Licensing & Admin Law DivisionChristine O. Gregoire
ATTORNEY GENERAL OF WASHINGTON
Licensing & Administrative Law Division
5th Floor Highways Licenses Building • PO Box 40110 • Olympia WA 98504 -0110
Phone: (360) 753 -2702
i
July 30, 2002
Government Lawyers Bar As$ociation
Educational Service Districts
P.O. Box 2341
Board Members Association
Olympia, WA. 98507
825 5" Avenue S.E.
Olympia, WA 98502
WA State Association of M*cipal Attorneys
1200 5 Avenue, Suite 1300
Municipal Research & Services
Seattle, WA 98101 -1059
Center of Washington
1200 5` Avenue, Suite 1300
Pam Loginsky
Seattle, WA 98101 -1059
WA Association of Prosecuting Attorneys
206 10` Avenue, S.E.
Association of School Principals
Olympia, WA 98501
10218" Avenue S.E.
Olympia WA 98501 -1500
WA State Association of Counties
206 10` Ave. S.E. j
Peter Theine
Olympia, WA 98501
WA State Transit Association
509 12 Avenue S.E.
WA Association of County Yfficiats
P.O. Box 2377
206 10 Ave., S.E_
Olympia, WA 98507 -2377
Olympia, WA 98501
Association of Washington Cities
Scott Taylor
WA Public Ports Association
1076 Franklin Street S.E.
1501 Capitol Way S.
Olympia, WA 98501 -1346
Olympia, WA 98501
WA School Directors Associ4tion
WA Public Districts Association
221 College St. N.E.
120 Union Avenue
Olympia, WA 98516
Olympia, WA 98501
Carolyn Thomas
Jennifer Smith
Federal Way Fire Districts
ALARM
31617 1st Ave. S.
c/o City of Seattle
Federal Way, WA 98003 !
Records Management Office
600 4 Avenue, Room 104
Seattle, WA 98104
RE: Open Public Meetings Act Information
Dear representative of Local Government, County Government, and School - Districts and their
Associations and Organizations:
®'.
FROM 360 664 0174
TO Prosecutor
C
11/19/2002 8:59 AM Page 2
*,
July 30, 2002 ATTORNEY GENERAL OF WASHINGTON
Page 2
This letter provides you information concerning the Open Meetings Act (OPMA)
in chapter 42.30 RCW. You: may be aware that our office has an online deskbook describing
several sections of the act, and describing the Open Public Records Act in chapter 42.17 RCW.
That deskbook is available at www.wa.gov /ago/ and has been a good resource for your
organizations and the public for several years. We want to advise you that we are in the process
of updating that deskbook to ddress new laws and court decisions, which we are hopeful will be
completed this year. If you have any comments on particular sections that you would like
updated, please direct them t� Chip Holcomb, Senior Counsel, at ChioH(Mamwa.gov or at (360)
753 -9671.
One portion of the deskbook that will be updated is the section describing when a board
or commission subject to the OPMA may hold an executive session. Meanwhile, you may be
aware that during the 2001 session, the Legislature amended RCW 42.30.110(1)(i), which
addresses the provision allo. g executive sessions to be conducted to discuss "potential
litigation." Chapter 216, 2001 Laws. Enclosed with this letter is a description of the law as
amended, with several hypothetical examples, which we hope you will find useful.
Finally, Chapter 216,1 2001 Laws also authorized our office to provide information,
technical assistance, and training on the OPMA. RCW 4230.210. We continue to offer training,
but like your agencies and clients, we are operating in a climate of budget and FTE reductions.
As a result, we need to make sure our training opportunities reach the broadest audience
possible. We therefore consider factors such as the size of the audience, whether the training is
serving more than one agenc (such as a jointly - sponsored training with school districts and the
local city council, for example), whether the local media are co- sponsoring the training, and
whether the public can attendi The contact person in our office for local government training on
the OPMA is Fred Olson at liredonaat%wa.gov or at (360) 6649081. Our office will continue to
provide other OPMA infotma'tion, such as the online deskbook and the enclosed memorandum,
to the extent feasible within oar resources.
We trust this information assists you
Very truly yoou�uryys,))
�r-
FRED A. OLSON
Director of Adminis do
13
THO hip" H LC M, Jr.
Senio ounsel'
FO /CH.jb
Enclosure
cc: Ernie Rushing, Sr. AAG
Linda Moran, Sr_ AAG
Howard Fischer, Sr. AAG
Nancy Krier, AAG
bcc: Stacia Hollar, AAG:
FROM 360 664 0174 TO Prosecutor
11/19/2002 8:59 AM Page 3
11/19/02 09 :51 FAX 360 664 0174 LIC & ES AGO
2001 Legislation Cncerning Open Public Meetings and Executive Sessions
I
Q 004
The Attorney General's Office online Open Records and Open Public Meetings
Deskbook published in 19981described the provision in the Open Public Meetings Act at RCW
42.30.110(l)(i) for public Bodies to meet in an executive session to discuss litigation or
"potential litigation." The Deskbook also explained that there were different approaches to
interpreting "potential litigation" because the term was undefined in the law, and.states that,
"Ultimately, the scope of the potential litigation provision will need to be clarified by the
legislature or interpreted 6 y the courts." 1998 Deskbook, Chapter 2, Section 2.3(i)
(www.wa. gov /ago /records)
During the 2001 session, the legislature provided that clarification. The legislature
passed and the Governor signed Substitute House Bill 1384. Chapter 216, 2001 Laws. The
legislation became effective July 22, 2001. The legislation also provides that the Attorney
General may provide inforn technical assistance, and training on.the provisions. of the
Open Public Meetings Act. RCW 42.30.210. Therefore, the Attorney General's Office is
offering this memorandum td public agencies and the public to guide them on this new law as it
addresses executive sessionslto discuss potential litigation, until the 1998 Deskbook is updated
and revised. t
The specific provision in RCW 42.30.110(1)(i) now provides that an executive session
can be convened:
To discuss with legal counsel representing the agency matters relating to
agency enforcement lactions, or to discuss with legal counsel representing the
agency litigation or potential litigation to which the agency, the governing
body, or a member acting in an official capacity is, or is likely to become, a
party, when public knowledge regarding the discussion is likely to result in
adverse legal or financial consequences to the agency. This subsection (1)(i)
does not permit a govverning body to hold an executive session solely because
an attorney represe #ting the agency is .present For purposes of subsection
(1)(i), "potential Iiogatiou" means matters protected by RPC [Rule of
Professional Condudt] 1.6 [confidentiality of attorney - client communications]
or RCW 5.60.060(2)(a) [attorney client privilege] concerning:
(A) Litigation that has been specifically threatened to:wbich the
agency, the governing body, or a member acting in an official capacity is, or
likely to become, a party;
(B) Litigation that the public body reasonably believes may be
commenced by or against the body, the agency, or member acting in an
official capacity; or,i
(C) Litigation or legal risks of a proposed action or current practice
that the public body has identified when. public discussion of the litigation or
legal risks is likely to result in an adverse legal or financial consequence to
the agency.
'The 1998 Deskbook is in the process of being updated on all topics covered by that online guide to the
law, as pan of a project separate from this memorandum.
FROM 360 664 0174 TO Prosecutor 11/19/2002 8:59 AM Page 4
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The legislature pass[
which public bodies may go
amendment became law, i,
discussing the law prior to th
et al., 144 Wn.2d 583, 30 P.
recognized that executive se:
and open discussion betwee
Court specifically recognize(
Act. The Court concluded,
objective standard, the agent
be benign and was unlikely
statute.
To provide . further
following case examples are
Case Example: A ci
has received a letter
state law and the cite
discuss with its legal
council meet in execs
Resolution: While t)
the city council may
of this ordinance c
threatened litigation,
or financial consequ .
give an unfair adva
attorney from giving
ordinance and the the
I this bill, effective in July 2001, to clarify the circumstances in
uto executive session pursuant to RCW 42.30.110(1)(i). After this
September 2001 the State Supreme Court issued an opinion
amendments. In Re the Recall of Lakewood City Council Members
d 474 (2001). While the opinion discussed the prior law, the case
;ions under RCW 42.30.110(1)(i) can be necessary to promote free
. the public agency client and its legal counsel' and therefore the
the attorney- client privilege exception to the Open Public Meetings
iowever, that executive sessions are not available where from an
should know beforehand that the discussion with its attorneys will
> result in adverse legal or financial consequences described in the
under the amendments to RCW 42.30.110(1)(i) the
as hypothetical situations:
is considering adopting a new zoning ordinance. The city
, am a citizen alleging that the proposed ordinance violates
?,n may sue. The city council goes into executive session to
ounsel the legality of the proposed ordinance. May the city
fve session?
city council may choose to discuss this in the open session,
scuss with its legal counsel in executive session the legality
d the threatened litigation. This matter involves both
ind presents legal risks that appear likely to result in legal
ices. The discussion, if conducted in an open session, may
age to the potential plaintiff, and may chill the council's
candid legal advice to the council on the legality of the
atened lawsuit.
Case Example: A county council wants to go into executive session to enable its
attorney to inform th!e members about the laws that affect the council May the
council meet in executive session to receive this information?
Resolution: The answer depends upon what the council wants to discuss with its
attorney. For example, if the attorney is simply intending to outline various
statutes of which toe commission should be aware as a general course in
conducting its busingss, the answer may be "no. " If, however, the session will
consist of an attorney providing opinions on the statutes, focused on potential
litigation, in a confrliential communication privileged under Rule of Profession
Conduct 1.6 and the dtiorney- client privilege statute at RCW 5.60.060(2), then the
answer would be 'des." Both the attorney for the agency and the client agency
should be clear, in advance, what the attorney will cover so the decision as to
whether to convene in an executive session is made with recognition of the
statutory limits.
FROM 360 664 0174 TO Prosecutor 11/19/2002 8:59 AM Page .5
11/19/02 09:52 FAX 360 664 0174 LIC & ES AGO Q006
Case Example. A school board wants to meet in executive session to discuss a
pending lawsuit. The attorney cannot attend the meeting, either in person ar..via
telephone. May the board meet in executive session to discuss the lawsuit?
Resolution: No. The statute requires that the board must "discuss with legal
counsel" either litiga�lion or potential litigation before it can meet in an executive
session to discuss su�h matters.
Case Example: The US. Supreme Court' announces a decision of importance to
port districts, and 'may have implications requiring changes to its current
practices. The por � district board calls an executive session for the district's
attorney to brief the board an the decision. Is this proper?
Resolution: The answer depends on the discussion by the attorney. The fact of
the decision is public and is not privileged information and is therefore
appropriate for pu is dissemination of that fact in the open meeting. The
attorney's analysis o the decision, however, and his or her advice on the district's
options in light of e decision are appropriate for executive session if the
attorney believes that public discussion of the legal risks of continuing the current
practice or a proposed action in light of the court decision is likely to result in an
adverse legal or financial consequence to the agency.
Case Example: A state commission entered a contract with Party A, and is
considering entering a second contract with the same party. The attorney
advising the commts is aware of bankruptcy laws that create the possibility
that Party A could aboid its obligations to the state commission under the existing
and proposed contrd',cts. Public discussion of these legal risks would increase the
risk the contractor i0ill file for bankruptcy, with adverse financial impacts on the
commission. The commission calls an executive session for the assistant attorney
general to outline thh risks of loss under the existing and proposed contracts. Is
this proper?
Resolution: Although this situation does not involve actual or pending litigation,
public discussion o,� the legal risks of the proposed contract might result in,
adverse legal or financial consequences to the agency. The matter could
probably be discussej in executive session.
FROM 360 664 0174 TO Prosecutor 11/19/2002 8:59 AM Page .6