By Frank Chmelik
Following up on last month’s topic of “public comment” at commission meetings, this month we look at the recent changes to the Open Public Meetings Act which became effective June 9, 2022.
In the last session, the Legislature passed Engrossed Substitute House Bill 1329 (“ESHB 1329”) which made several modifications to the Open Public Meetings Act, chapter 42.30 RCW (the “OPMA”), in part, I think resulting from experiences during the Covid-19 pandemic. These changes deserve your attention.
Meetings. Most are aware that the OPMA described three types of meetings – a regular meeting, a special meeting and an emergency meeting. During the Covid-19 pandemic the governor declared a state of emergency and issued a number of proclamations to address issues related to the state of emergency. Among other issues, these proclamations allowed and mandated public agencies to conduct meetings of the governing bodies remotely. These “remote meetings” were required to included telephonic and/or internet-video participation by the governing body and the public. This was a departure from the general rule that meetings of the governing body must occur in a physical location where the public can attend. ESHB 1329 amended the OPMNA to allow “remote meetings” only if after the declaration of an emergency by a local, state or federal authority, a local government determines that “it cannot hold a meeting of the governing body with the public in attendance in person with reasonable safety because of the emergency.” If that does occur the local government must provide an option for telephonic or “other readily available alternatives in real-time” for the public to participate without cost. This same rule applies if the governing body is meeting in a physical location, but the emergency prevents some or all of the public from attending. Interestingly, public agencies that held some regular meetings remotely prior to March 1, 2020, can continue the practice. Also, on the topic of meetings, ESHB 1329 encourages, but does not require, that public agencies continue the practice of allowing the public to attend telephonically and/or by internet-video at no cost.
Public Comment. Prior to enactment of ESHB 1329, the OPMA required only that the public be afforded the opportunity to observe government in action. There was no requirement to allow public comment. ESHB 1329 added an OPMA public purpose of “informing the people’s public servants of their views.” With this change to the OPMA purpose, came an encouragement to public agencies to “incorporate and accept public comment during their decision-making process.” In addition, the OPMA was amended to require that the governing body “provide an opportunity at or before every regular meeting at which “final action” (a decision) is taken for public comment. Now, in most instances, an opportunity for public comment is required when one considers that even approving minutes or approving vouchers are “final actions”. The amendment goes on to require that if written testimony is accepted, it must be distributed to all the members of the governing body. It also requires that If oral comment is allowed and an individual who has difficulty attending the meeting in-person requests an opportunity to provide oral comment remotely, the agency must provide this opportunity when feasible.
Executive Sessions. The OPMA has always required the presiding officer of the governing body to state the purpose of the executive session and the anticipate length of executive session prior to going into an executive session. The “best practice” was always to cite the applicable subpart of RCW 43.30.110 – the executive session portion of the OPMA. ESHB 1329 amends the OPMA to require the “announced purpose” be entered into the minutes of the agency. This change reinforces the “best practice” of citing the applicable subpart of RCW 43.30.110.
Recording Meetings. ESHB 1329 amends the OPMA to encourage public agencies to make audio or video recordings of regular meetings available online for a minimum of six months.
Posting Agendas. ESHB 1329 amends the OPMA to require, with some limited exceptions, that an agency post its regular and special meeting agendas at least 24 hours in advance of the meeting on a website.
In conclusion, ESHB 1329 is worth a review by port staffs and port attorneys.
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 firstname.lastname@example.org.