SEPTEMBER 2022 Knowing the Waters By Frank Chmelik of Chmelik Sitkin & Davis, P.S.
SEPTEMBER 2022
Knowing the Waters
By Frank Chmelik of Chmelik Sitkin & Davis, P.S.
This month’s focus is on the “best practices” for communicating with commissioners between meetings. Port staff frequently have information about potential tenants or customers or other sensitive information that is not public information, but they need to communicate it to commissioners and seek timely individual commissioner input. In my mind the proper handling of this has nothing to do with circumventing the Open Public Meetings Act (“OPMA”). Rather, it has everything to do with the necessary and normal discourse between port districts and the business community so that the port staff can serve the port’s mission and the public good. With that in mind let’s discuss the “best practices.”
Individual Commissioner Briefings. These briefings are sometimes called “1-1-1s” (or “2-2-1s” for five-member port commissions). Port staff meets with individual commissioners and provides a briefing on a topic – for example, the status of negotiation with a potential new tenant. Port staff may seek the individual commissioner’s view on the subject. This is not a violation of the OPMA because it is not a meeting of the governing body – which is defined as the majority of the port commission. However, there are several important “ground rules” that must be followed to avoid a violation of the OPMA. First, port staff should never state to anyone they have a “consensus” after speaking with the individual commissioners. Simply stated there is no consensus or commission direction possible until the commissioners meet as a commission in an open public meeting to discuss the matter. Second, port staff must never relay the comments, concerns or opinions of any port commissioner to any other port commissioner because such communication would likely result in a serial meeting violation of the OPMA.
Serial Meeting Violations of the OPMA. A so called “serial meeting” violation of the OPMA occurs when one commissioner communicates about port business to another (in a three-member commission) because discussing port business is an “action” under the OPMA which needs to be conducted only in an open public meeting . Port staff acting as the conduit of this information heard during the individual commissioner briefings can actually cause the commissioners to have a “serial meeting” violation of the OPMA. Our courts have noted that a serial meeting violation occurs when the communications, viewed as a whole, are between the majority of the governing body concerning a public matter. Therefore, the “best practice” is to use individual commissioner briefings for just that – to inform and gain the perspective of that commissioner. Scrupulously avoid drawing any conclusion on “commission direction” and never relay any information. By the way, a serial meeting violation can also occur when port staff emails or text messages commissioners and a commissioner hits “reply all.” I believe the best practice is to start such communication to commissioners with the caveat “Please avoid a violation of the OPMA – do not ‘reply all’ to this communication.”
Letters and Press Releases. Pay particular attention to press releases or letters drafted by staff that purport to speak for the commission or all the commissioners. How can “we the commissioners” or the “port commission” issue a press release without an open meeting to approve the language? The best practice is to ask the commission to appoint the commission president to speak for the commission, if needed, between commission meetings.
In summary, individual commissioner briefings are a useful tool for port commission governance. In my view, in order to keep this valuable tool available to port commissions, the best practices should be strictly followed.
As always, please contact your port counsel with any questions regarding this topic. And, if you have a particular question for a Knowing the Waters, please email me at fchmelik@chmelik.com.