Updated July 16, 2020

Port Commissions and other governing bodies subject to Washington’s Open Public Meetings Act (OPMA) have new guidance from the Washington Attorney General on conducting public meetings. Agencies must conduct public meetings remotely and provide a means for the public to participate at least audibly, and agencies must reschedule or cancel any unnecessary meetings.

On July 7, 2020, Washington’s legislative leadership extended the operation of Proclamation 20-28.1, pertaining to the Public Records Act and the OPMA, through the termination of the COVID-19 State of Emergency or August 1, 2020.  Governor Inslee proclaimed that a State of Emergency continues in all counties of Washington State and extended the proclamation through August 1.

First, note that the OPMA is about providing, not gathering, information. As such, this guidance applies to public meetings and not public hearings.

The proclamation eased normal rules providing that the public must be allowed to attend any meeting of the governing body of a public agency. Under the proclamation, all agencies subject to the OPMA are prohibited from conducting any meeting that is subject to the OPMA unless it is not conducted in person and instead provides an option for the public to attend the proceedings through telephonic access, at a minimum, with optional electronic, internet, or other means of remote access.

All persons attending the meeting must be able to hear each other at the same time. Thus, even though the OPMA does not require public comment, the proclamation appears to require a platform that allows agency members to hear any public participants. A “meeting” by text and email would still not suffice, since the public cannot hear such deliberations, but a televised or live-streamed meeting would meet the requirements if the agency also provides multi-way audio.

Further, agencies are prohibited from taking “action” as defined in the OPMA unless the matters are “necessary and routine matters or are matters necessary to respond to the COVID-19 outbreak and the current public health emergency,” until the Governor restores the regular operation of the OPMA.

The Governor also suspended the rule that agencies cannot place conditions on attendance, although the Governor requests that agencies comply with the regular rule to the greatest extent possible. This suspension is important because many remote-access systems require the public to register personal information to log in to meeting platforms.

Before conducting a meeting under the proclamation, agencies should consider:

• Is the meeting truly necessary or can some issues be set over for a future meeting?
• If there is information that could be distributed or made available in writing to the governing body and the public that does not need governing body action, can agency staff provide that information without a discussion?
• If the governing body accepts public comments, can it strongly encourage the public to submit them in writing?

An agency may reschedule meetings through the OPMA’s adjournment provisions. A quorum may adjourn any type of public meeting to a stated time and “place,” and less than a quorum may do so if a majority of members is absent. To adjourn a special meeting, though, at least one member of the governing body must be present. When adjourning a meeting, the governing body must prepare an order or notice that specifies the time and “place” of the rescheduled meeting. Presumably, but not expressly, the word “place” under the proclamation refers to the remote platform an agency intends to use.

The Governor has suspended the regular requirement to post the notice or order of adjournment, or a notice of a special meeting, near the entry to the agency’s physical location. However, agencies should post such notices conspicuously on their websites or other communications with the public to give the greatest effect practicable to the regular rules. The proclamation excuses agencies that publish a schedule of regular meetings in the Washington State Register from publishing schedule changes at least 20 days prior to the rescheduled meeting.

An agency may also cancel meetings. However, for regular meetings, adjournment is better because the resulting rescheduled meeting will qualify as a regular meeting.

During an emergency, the presiding officer may suspend some requirements, including notice procedures, if the emergency creates a need for expedited action by a governing body to meet the emergency. But the Attorney General cautions that “[t]he fact that there is an emergency in the city or state (including one that has been declared by another agency), and which may impact the governing body in some way, may or may not mean there is a ‘need’ for ‘expedited action’ by that governing body itself to ‘meet the emergency.’” Therefore, we recommend adhering to normal notice requirements to the greatest extent possible.

The proclamation also suspended some aspects of the Public Records Act (PRA). Agencies need not make facilities available for public inspection and copying of records, nor provide for in-person receipt of records requests. Finally, the proclamation suspends the requirement to respond to records requests within five business days of receiving the request.

For questions or concerns, please do not hesitate to contact us or visit our COVID-19 resource page for more information.