March 2023 Knowing the Waters: Open Public Meetings Act, by Frank Chmelik, CSD Attorneys at Law
Knowing the Waters - Open Public Meetings Act
The topic for this month is “public comment” at commission meetings. Last year there were changes to the Open Public Meetings Act. We had a number of questions from ports on this subject and it probably is time to make sure your port is doing it right.
We start with the Open Public Meetings Act, chapter 42.30 RCW. As we all know, whenever a majority of the commission meets to transact business (called an “action” in the OPMA), it must be done in an open public meeting unless (i) the business fits within an executive session exemption or (ii) if the business involves discussion of union negotiations. As our Courts always remind us, the OPMA was passed by initiative of the people and is liberally interpreted to meet the goal of that governing boards’ actions be taken openly and that governing boards’ deliberations be conducted openly. Before the 2020 amendment this was viewed as a right of the public to observe governance. RCW 42.30.010 noted that “the people insist on remaining informed so that they may retain control over the instruments they have created.”
This changed with the 2022 amendment when the Legislature added a goal of allowing for public comment. Now the language in RCW provides that “the people insist on remaining informed and informing the people's public servants of their views so that they may retain control over the instruments they have created.” Now governments are encouraged to provide public comment in their decision-making process “even when not required by law.”
In 2020 RCW 42.30.240 was added mandating public comment “at or before” at which “final action” is taken by a governing body. Keep in mind that almost anything a port commission does is an “action” including discussions, receiving staff reports and even site visits. "Final action" means a collective positive or negative decision, or an actual vote by a majority of the members of a governing body. Therefore, in this context there are virtually no meetings where a “final action” is not taken because even approval of minutes of a previous meeting is a final action.
The 2022 amendments to the Open Public Meetings Act also encourages governments “to provide for the increased ability of the public to observe and participate in the meetings of governing bodies through real-time telephonic, electronic, internet, or other readily available means of remote access that do not require an additional cost to access the meeting.”
Finally, learnings from the Covid-19 pandemic were incorporated in the 2022 amendments to the Open Public Meetings Act providing guidance for holding remote meetings and/or meetings without a physical location in the event of a “declared emergency” (RCW 42.30.230). A “declared emergency” occurs when after the declaration of an emergency by a local or state government or agency, or by the federal government, a public agency determines that it cannot hold a meeting of the governing body with members or public attendance in person with reasonable safety because of the declared emergency. During a declared emergency, members of the governing body may appear or attend by phone or by other electronic means that allows real-time verbal communication without being in the same physical location provided if the public cannot physically attend, they must be allowed to listen to the meeting by telephone or other readily available technology. Note that a declared emergency is different than a situation whereby reason of a “fire, flood, earthquake, or other emergency, there is a need for expedited action by a governing body to meet the emergency” (RCW 42.30.070).
The 2022 amendments generate the following recommended “best practices”:
Evaluate your port’s audio and visual broadcast system and upgrade as necessary . There are various levels of success with this. Some ports have first class systems that allow the public to hear and comment remotely. Others have rudimentary systems that make it hard to hear or see the meeting. I note that a good quality system has the added benefit of saving the cost of port lawyers, engineers, architects and other consultants traveling to port meetings.
Review the port’s standard agenda. One of the clear purposes of the 2022 amendments was to require public comment before final action. Since any vote is a “final action” the best practice is to move the public comment to the beginning of the agenda. Some ports have two public comment periods. The first public comment is for items on the agenda and the second public comment is at the end of the meeting for anything not on the agenda.
Develop and adopt an emergency meeting plan for both “emergencies” under RCW 42.30.070 and “declared emergencies” under RCW 42.30.230. This plan should include which port official (for example the executive director or the president of the commission) will make the determination that an emergency or a declared emergency requires an expedited or a remote meeting. The plan should also include a process and procedure for notifying the commissioners, notifying the public and holding the meeting. Provide an “emergency response notebook” for each commissioner. I know ports routinely have tabletop emergency exercises. It is a good idea to periodically go over the emergency meeting procedures with the commissioners.
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@csdlaw.com.