What is a “meeting” - Washington State School Directors` Association

Open Public Meetings Act in the Digital Age

Welcome Our presentation will begin shortly. Send your questions via chat to be answered in our Q&A session at the end of the webinar.

Speakers Author and Expert Heidi Maynard Director of Policy and Legal Presenter Colleen Miller Director of Leadership Development

Agenda 12:00 p.m. Welcome and introductions 12:03 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

12:45 p.m. Questions and answers

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 Florida’s “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

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. 12

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. 13

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. 14

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. 15

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? 16

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. 17

Is it necessary to hold an open public meeting? Board retreat Meeting with other jurisdiction like a tribal council Interviews of candidates for Superintendent Staff retreat Study session Taking testimony School-community forum Committee meetings Conducting hearings Training session Collective bargaining strategy sessions Student/staff discipline appeals

YES YES YES YES YES YES LIKELY LIKELY LIKELY NOT LIKELY NO NO 18

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 violation…for a majority of members of [a board] to travel together…or gather for purposes other than a regular or special meeting…PROVIDED that they take no action.” RCW 42.30.070

So, traveling together, attending church and social gatherings together are fine, just don’t 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. 21

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, Don’t 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 General’s 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 board’s business. • Boards should be diligent in allowing public comment on appropriate issues BUT shouldn’t surrender control of the agenda to the public. 25

Everyone’s 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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You’re outta here! Four steps to ejection 1. Limit unruly attendee’s speaking time. 2. Instruct the unruly attendee as to rules of courtesy. 3. Remove the unruly attendee’s privilege to speak. 4. 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. DON’T FORGET TO LET THE MEDIA BACK IN! RCW 42.30.050 28

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 General’s 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 General’s 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. 31

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: 1. Matters affecting national security, RCW 42.30.110 (1)(a) 2. Selection of a site or acquisition of real estate if public knowledge might increase the price, 1(b) 3. 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) 32

What about executive sessions? 4. Negotiations on performance of a publicly bid contract if public knowledge might increase costs, 1(d) 5. Complaints or charges against an employee or board member (HOWEVER: the person involved may open the meeting to the public), 1(f) 6. 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) 33

What about executive sessions? 7. Qualifications of a candidate for appointment to elective office, BUT interviews and final appointment must be conducted in public. (1)(h) 8. Discussion with legal counsel regarding enforcement actions, litigation or potential litigation if public discussion might result in adverse legal or financial consequence. (1)(i) 9. 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) 34

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) - 8:00 p.m. to 9:00 p.m. 35

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 Robert’s 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. 37

Best practices for meeting virtually/electronically Taking OPMA and Robert’s 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 shouldn’t require specific training or education to use. 38

Best practices for meeting virtually/electronically 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. 39

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: It’s 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. 40

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.

DON’T: • 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” Don’t do it. Just don’t.

Daisy chains Information passed from one board member to another in order to avoid triggering the quorum requirement of OPMA. 42

Practices that can lead to OPMA violations

“Two by two” aka: “Noah’s 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. 44

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. 45

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” 46

Boards and social media OPMA doesn’t 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, it’s a meeting. 47

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 Archivist’s Records Management Guidelines and General Records Retention Schedules. 48

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. 49

Sending texts and emails during board meetings Board members, like the rest of the general public, use Smartphones and tablets during meetings. That’s 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, don’t 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: 1. That a member of a governing body 2. Attended a meeting of that body 3. Where action was taken in violation of OPMA and 4. 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. 54

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 fact…shall 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 attorney’s 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.” 56

What can board members do if they become aware they’ve 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 board’s 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) 57

Questions and answers

“I would trade all my technology for an afternoon with Socrates.” Steve Jobs, Newsweek, 2001

Thank you for attending! A recording of this event will be available on our website within a week. www.wssda.org