When a quorum of a Washington city council shows up at a noticed standing-committee meeting, does that count as a separate council meeting needing its own special-meeting notice under the Open Public Meetings Act?

Plain-English summary

Representative Barbara Bailey asked the AG two related questions about Washington's Open Public Meetings Act (OPMA). Cities often create standing committees by ordinance, with each committee composed of fewer than a quorum of council members. The committee meetings are scheduled, noticed, and open to the public. Sometimes other council members (not on the committee) drop in. If enough other council members show up that a quorum of the full council is present at the standing committee's meeting, has the council itself had a meeting that requires separate notice?

The AG's answer was yes, but with a key qualifier: the council itself only meets if a quorum takes "action" within the meaning of RCW 42.30.020(3). Mere physical presence does not trigger the OPMA. But "action" is defined broadly. It includes "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." Per Miller v. City of Tacoma and Eugster v. City of Spokane, that list is illustrative, not exhaustive.

So:

Scenario 1: A quorum of council members attends but does not participate. Probably no separate council meeting, but the line is drawn at action, not participation. If the silent attendees are receiving public testimony or considering a proposal (even silently), they may be taking action. The council members must be honest with themselves about whether they are "transacting official business" while present.

Scenario 2: A quorum of council members attends and participates. Almost certainly a separate council meeting. Participation by a quorum in deliberations, discussions, or evaluations of public business is exactly what RCW 42.30.020(3) calls action.

In either scenario, when the council does take action, the standing committee's notice does not satisfy the OPMA's notice requirement for the council. The council needs its own notice of a special meeting under RCW 42.30.080 (24 hours' notice to each council member and to local press requesters who have asked in writing for special-meeting notification, specifying time, place, and business to be transacted). If the council fails to give that notice, the council meeting violates the OPMA even though the standing committee meeting itself was properly noticed.

The AG's earlier opinion AGO 2006 No. 6 was the closest precedent. There, the question was whether a quorum of city or county council members could attend a third party's public meeting without violating the OPMA. The 2006 opinion said yes, as long as no action was taken. The 2010 opinion noted that the standing-committee scenario is different from the third-party meeting scenario: the standing committee is a creature of the council, discussing the council's own business, with a real risk that attending members will be considering or deliberating that business. So the action analysis cuts more sharply against the council.

The opinion also emphasized that this analysis does not bar council members from attending committee meetings. They are members of the public and can attend any open meeting. They just cannot turn the committee meeting into a substitute for an unnoticed council meeting. If they want to attend and engage, they have to either avoid taking action or notice it as a special council meeting.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is "action" under the OPMA?
Per RCW 42.30.020(3): "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." Eugster v. City of Spokane confirmed the list is illustrative, not exhaustive. Other conduct that transacts official business can qualify. The key test is whether the body is doing something in its capacity as a public body.

Does a quorum just being present, without speaking, count as action?
Maybe. The opinion was careful here. Silent presence is not necessarily action, but a quorum receiving public testimony is action even if no one on the council speaks. Council members "would need to consider whether they are receiving public testimony or taking other action while attending the meeting." This is fact-specific.

What's a regular vs. special meeting?
Regular meetings are scheduled by ordinance, resolution, bylaws, or rule per RCW 42.30.070. Special meetings are everything else, requiring 24-hour notice to council members and to news media that have asked in writing per RCW 42.30.080. Special-meeting notices must specify time, place, and business to be transacted.

Can the standing committee meeting itself satisfy the council's notice requirement?
No. The standing committee and the council are distinct governing bodies under RCW 42.30.020(3). Notice of one does not constitute notice of the other. AGO 1971 No. 33 is the older authority on this point.

What about serial meetings or rolling meetings?
The OPMA also reaches "serial meetings" where council members rotate through small-group discussions to avoid a quorum but collectively deliberate on the same business. The 2010 opinion focused on a single-meeting scenario, but the underlying principle (action transacts official business) applies to serial meetings as well.

What's the consequence of an OPMA violation?
RCW 42.30 provides for individual liability of council members ($500 civil penalty per violation), invalidation of the action taken, and attorneys' fees for prevailing plaintiffs in some circumstances. The opinion did not detail remedies, but they are real.

Does this apply to county councils, school boards, fire districts, etc.?
Yes. The OPMA covers all public agencies and their committees. The opinion's reasoning applies to any governing body that has standing committees attended by full-body members.

Can council members listen to public testimony at a committee meeting if they are silent?
The opinion says "receiving public testimony" is itself an action. So a quorum present while public testimony is being delivered is taking action even if silent. The fix: either fewer than a quorum attends, or the council provides separate special-meeting notice covering the time and business of the committee meeting.

Background and statutory framework

The OPMA's policy is in RCW 42.30.010: government actions and deliberations should be open. The substantive rule is in RCW 42.30.030: meetings of governing bodies of public agencies must be open and public. The definitions are in RCW 42.30.020, with "governing body" (subsection (2)), "action" (subsection (3)), and "meeting" (subsection (4)) all relevant here.

Cities often create standing committees by ordinance, populated by fewer than a quorum of council members. Those committees are themselves "governing bodies" under RCW 42.30.020(2) when they "act on behalf of the governing body, conduct hearings, or take testimony or public comment." So the committee's own meetings need OPMA-compliant notice. Where it gets tricky is when the council's other members show up.

Hartman v. State Game Commission and Dorsten v. Port of Skagit County established that regular meetings need not include an agenda. Mead Sch. Dist. 354 explained the regular/special meeting distinction. Miller v. City of Tacoma read "action" broadly. Eugster v. City of Spokane confirmed the action list is illustrative. AGO 2006 No. 6 addressed third-party meeting attendance and is the closest sibling opinion.

Citations and references

Statutes:
- RCW 42.30 (Open Public Meetings Act)
- RCW 42.30.010, .020, .020(1)(c), .020(2), .020(3), .020(4)
- RCW 42.30.030 (open meeting rule)
- RCW 42.30.070 (regular meetings)
- RCW 42.30.080 (special meeting notice)

Cases:
- Hartman v. State Game Comm'n, 85 Wn.2d 176, 532 P.2d 614 (1975)
- Dorsten v. Port of Skagit Cnty., 32 Wn. App. 785, 650 P.2d 220 (1982)
- Mead Sch. Dist. 354 v. Mead Educ. Ass'n, 85 Wn.2d 140, 530 P.2d 302 (1975)
- Miller v. City of Tacoma, 138 Wn.2d 318, 979 P.2d 429 (1999)
- Eugster v. City of Spokane, 110 Wn. App. 212, 39 P.3d 380 (2002)
- In re Recall of Beasley, 128 Wn.2d 419, 908 P.2d 878 (1996)

Earlier AG opinions:
- AGO 1971 No. 33 (governing body, including committees)
- AGO 2006 No. 6 (third-party meeting attendance)

Source

• Landing page: https://www.atg.wa.gov/ago-opinions/meetings-committee-attended-other-members-governing-body

Original opinion text

Attorney General Rob McKenna

OPEN PUBLIC MEETINGS ACT—Meetings Of Committee Attended By Other Members Of Governing Body

The Open Public Meetings Act requires that notice be properly given of a meeting of the governing body. This requirement is not satisfied by notice given for a meeting of a standing committee of a city council as a governing body, where a quorum of members of the city council attend the meeting and take action as defined in the act, such that a meeting of the city council as a governing body takes place.

November 30, 2010

The Honorable Barbara Bailey

State Representative, District 10

PO Box 40600

Olympia, WA 98504-0600

Cite As:

AGO 2010 No. 9

Dear Representative Bailey:

By letter previously acknowledged, you requested our opinion on four questions, which we have consolidated into two as follows:

1. If a meeting of a standing committee of a city council is regularly scheduled, noticed, and open to the public, and a majority of the city council members attend, but do not participate in, the standing committee meeting, is there both a standing committee meeting and a council meeting; and must notice for a special meeting be provided separately for the council meeting, in addition to the notice for the standing committee meeting, in order for the meeting to comply with the Open Public Meetings Act?

2. If a meeting of a standing committee of a city council is regularly scheduled, noticed, and open to the public, and a majority of the city council members attend and participate in the meeting, is there both a standing committee meeting and a council meeting; and must notice for a special meeting be provided separately for the council meeting, in addition to the notice for the standing committee meeting, in order for the meeting to comply with the Open Public Meetings Act?

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BRIEF ANSWER

The answers to your questions depend on whether a meeting of the city council takes place when notice has been given only of a standing committee meeting. A meeting of the city council may occur if a quorum of the city council members take action at the standing committee meeting, as action is defined in RCW 42.30.020(3). If so, a separate meeting of the city council has occurred (in addition to the standing committee’s meeting). In that case, the additional meeting must comply with the Open Public Meetings Act’s notice requirements. Where the city council takes action at a standing committee’s meeting, it is not sufficient to rely on the notice that was provided for the standing committee meeting.

BACKGROUND

Before turning to your precise questions, we explain the general legal framework of the Open Public Meetings Act (Act), RCW 42.30, which governs our answers to your questions. The Act requires that all meetings of the governing body of a public agency shall be open and public. RCW 42.30.030. “Public agency” includes any “subagency of a public agency which is created by or pursuant to statute, ordinance, or other legislative act . . . .” RCW 42.30.020(1)(c). “Governing body” may include the “policy or rule-making body of a public agency [such as the city council], or any committee thereof when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment.” RCW 42.30.020(2). The Act is only concerned with a meeting where action is taken. RCW 42.30.020(4). “‘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." [1] RCW 42.30.020(3).

There are two types of meetings contemplated under the Act: regular and special meetings. Regular meetings are scheduled by ordinance, resolution, bylaws, or rule. RCW 42.30.070. The Act does not require that public agencies provide an agenda as part of the notice requirements for a regular meeting. Hartman v. State Game Comm’n, 85 Wn.2d 176, 181, 532 P.2d 614 (1975); Dorsten v. Port of Skagit Cnty., 32 Wn. App. 785, 789–90, 650 P.2d 220, review denied, 98 Wn.2d 1008 (1982). [2] Special meetings are meetings other than regular meetings. See Mead Sch. Dist. 354 v. Mead Educ. Ass’n, 85 Wn.2d 140, 142, 530 P.2d 302 (1975). They may be called with at least twenty-four hours’ notice to each member of the governing body and to each local newspaper and radio or television station which has previously requested in writing to be notified of special meetings. RCW 42.30.080. The notice for special

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meetings must specify the time and place of the special meeting and the business to be transacted. RCW 42.30.080.

In your request, you provide factual background that frames the scope of our opinion. For purposes of analyzing your questions, we assume these facts. First, you indicate that city councils have created a number of standing committees by ordinance. You explain that the ordinance requires regularly-scheduled and noticed committee meetings. You further state, in your letter, that “[t]he requirements for standing committee meetings are intended to be the same as or substantially similar to the requirements for full council meetings in order to ensure compliance with the [Act].”

Additionally, as you describe in your letter, the applicable ordinance provides that standing committees are composed of less than a quorum of city council members, however, city council members may attend the standing committee meetings if desired. No votes or final actions may be taken at standing committee meetings.

ANALYSIS

1. If a meeting of a standing committee of a city council is regularly scheduled, noticed, and open to the public, and a majority of the city council members attend, but do not participate in, the standing committee meeting, is there both a standing committee meeting and a council meeting; and must notice for a special meeting be provided separately for the council meeting, in addition to the notice for the standing committee meeting, in order for the meeting to comply with the Open Public Meetings Act?

The Act’s requirements are triggered at any point that the governing body of a public agency has a meeting as defined by the Act. RCW 42.30.030. Since, according to your request, standing committee meetings are already regularly noticed and scheduled, [3] a concern arises under the Act only if an additional meeting results from the attendance or participation of other city council members at the standing committee meetings.

A city council is a distinct entity from a standing committee. RCW 42.30.020(3) (defining a “governing body” both as a council and a committee acting on behalf of the

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council). Although a standing committee may be created by and made up of members of the city council, it is a “governing body” when it “acts on behalf of the governing body, conducts hearings, or takes testimony or public comment.” RCW 42.30.020(2); see also AGO 1971 No. 33, at 8–9. Meetings of the city council must comply with the Act, and may not rely upon the notice provided of a standing committee meeting.

Your question, therefore, depends on whether a meeting of the city council occurs, despite the fact that notice was given for only a committee meeting. This would occur only if a quorum of the full council takes an “action,” as that term is defined in statute. RCW 42.30.020(4). The statutory definition of “action” is quite broad. Miller v. City of Tacoma, 138 Wn.2d 318, 327, 979 P.2d 429 (1999); AGO 1971 No. 33, at 19. The Act defines “action” as “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(3). As noted by the court in Eugster v. City of Spokane, 110 Wn. App. 212, 39 P.3d 380 (2002), the definition includes a list that is not exhaustive of conduct that might constitute action. If an additional meeting occurs because the city council—a governing body distinct from the standing committee—attends and takes action, that new meeting requires separate compliance with the requirements of the Act. To put the matter differently, the Act is not satisfied by giving notice of a meeting of a standing committee, if the meeting turns out to constitute a meeting of the city council itself. Such notice would not satisfy the purpose of the Act—to assure advance notice to the public of meetings of a governing body, so that the actions of a governing body are “taken openly and . . . deliberations [are] conducted openly.” RCW 42.30.010 (declaration of legislative intent). Therefore, in answering your questions, we consider whether either of the described scenarios constitutes a “meeting” of the city council implicating the Act.

Although your request frames the question based on whether or not the council members “participate” in the standing committee’s meeting, the relevant inquiry is whether the council members take action while attending the meeting. RCW 42.30.020(4) (defining a meeting as a meeting at which action is taken). We concluded in 2006 that a quorum of city or county council members could attend a public meeting called by a third party without violating the Act, as long as the council members did not take action. AGO 2006 No. 6. [4] We emphasized that whether members take action depends on whether the particular circumstances fall within the “transaction of the official business” of the governing body.” AGO 2006 No. 6, at 2. For example, council members are taking action where they deliberate or discuss a decision they might eventually make. AGO 2006 No. 6, at 2 (citing In re Recall of Beasley, 128 Wn.2d 419, 908 P.2d 878 (1996)).

Additionally, for example, action occurs where a governing body receives public testimony. AGO 2006 No. 6, at 2. As we cautioned in the 2006 opinion, council members

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would need to consider whether they are receiving public testimony or taking other action while attending the meeting. Ultimately, whether a quorum of the city council is taking action is a fact-specific analysis that cannot be answered in the abstract, and accordingly, cannot be answered in the context of this opinion.

However, it bears mentioning that it is more likely in the scenarios you present, than in the situation discussed in the 2006 opinion, that the council members would be taking action while attending the standing committee meeting. In the questions that you present, the standing committee is a subpart of the city council—it is created by the city council and the business it is transacting is almost certainly within the scope of the city council’s official business. That makes the present scenario quite different from attendance at a completely unrelated third party’s meeting discussed in the 2006 opinion. It is more likely that city council members attending a meeting of the council’s own standing committee could be receiving public testimony, considering proposals, or performing other types of action.

This is not to suggest that council members cannot attend committee meetings. We do not conclude that council members who are not members of the committee are disqualified from attending what is otherwise an open public meeting; we merely conclude that if such a meeting is one at which the council takes “action,” then compliance with the Open Public Meetings Act is required. Moreover, even where the council members’ attendance constitutes a meeting of the council under the Act, they are not prohibited from attending the standing committee meetings by the Act. Rather, as long as the council follows the requirements for a special meeting under RCW 42.30.080, the members may attend and take action at the standing committee meeting. AGO 2006 No. 6, at 3.

2. If a meeting of a standing committee of a city council is regularly scheduled, noticed, and open to the public, and a majority of the city council members attend and participate in the meeting, is there both a standing committee meeting and a council meeting; and must notice for a special meeting be provided separately for the council meeting, in addition to the notice for the standing committee meeting, in order for the meeting to comply with the Open Public Meetings Act?

As mentioned above, the relevant question for purposes of analyzing whether the city council members’ attendance triggers additional notice requirements under the Act depends on whether the city council takes action (as it is defined by RCW 42.30.020(3)) at the standing committee meeting. Assuming it does, a meeting of the city council has occurred in addition to a meeting of the standing committee. In such a situation, the Act requires notice of the city council’s meeting in addition to notice of the standing committee’s meeting.

When a quorum of the city council takes action at a standing committee meeting, a city council meeting has occurred, and the city council must provide notice of its meeting consistent with the Act. The standing committee meeting is a separate governing body from the

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city council. It is not sufficient to rely on the notice that was provided for the standing committee meeting.

We trust that the foregoing will be useful to you.

ROB MCKENNA

Attorney General

ALICIA O. YOUNG

Assistant Attorney General

wros

Attachment 1

[1] “‘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(3).

[2] However, other statutes may impose additional notice requirements. For example, RCW 35.23.221 requires second class cities to notify the public of the preliminary agenda for the forthcoming council meeting. See also RCW 35A.12.160.

[3] Because the ordinances you reference treat standing committee meetings as regular meetings under the Act, we need not explore under what circumstances such meetings would be subject to the Act. For general reference, however, such meetings would be subject to the Act if the standing committee constitutes a public agency under RCW 42.30.020(1)(c) (“public agency” defined to include any “subagency of a public agency which is created by or pursuant to statute, ordinance, or other legislative act”). See also AGO 1971 No. 33, at 8–9 (concluding subcommittees created by statute or ordinance are agencies under the Act). Even if the standing committee does not constitute a public agency, it would be subject to the Act when it acts as a governing body by either acting on behalf of the city council or by conducting hearings, or taking testimony or public comment. RCW 42.30.020(2).

[4] Because we cite our 2006 opinion several times during the course of this analysis, a copy is attached for ease of reference.