Can two Washington county commissions hold a joint meeting in person across the county line, or do they have to use video conferencing?

Plain-English summary

Franklin County's prosecutor asked whether the Franklin and Benton county boards could hold a joint in-person meeting on shared bi-county projects, given that any such meeting would necessarily place at least one of the boards outside its home county. The AG concluded that county commissioners cannot transact county business at a meeting held outside the county. RCW 36.32.080 requires regular meetings to occur at the county seat. RCW 36.32.090 allows special meetings at other locations but only "within the county." Reading the two together, all county business meetings have to occur inside the county absent a specific statutory exception (the AG cited flood control under RCW 86.13.050 and intercounty library districts under RCW 27.12.100(2) as examples).

A joint meeting via video conference, with each board sitting at its own county seat, was acceptable. The Washington Supreme Court had recognized that county commissioners hold implied authority to carry out their statutory duties even where no statute expressly authorizes a particular method, so long as nothing prohibits it (State ex rel. Becker v. Wiley, 16 Wn.2d 340 (1943)). The AG drew an analogy to the Court of Appeals' approval of remote witness testimony in In re Marriage of Swaka, 179 Wn. App. 549 (2014), and the dicta in Clausing v. State, 90 Wn. App. 863 (1998), endorsing modern conferencing technology as a legitimate way to conduct public business.

The opinion also clarified an OPMA point: members of one county's board may attend meetings of another governing body, even if that attendance amounts to a quorum of the visitors, without converting the gathering into an OPMA meeting, so long as no business or "action" (which under RCW 42.30.020(3) includes receiving public testimony) is taken by the visiting board.

Currency note

This opinion was issued in 2014. 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

Q: Why can't two county boards just meet in person, halfway between the counties?
A: Because RCW 36.32.080 requires regular meetings at the county seat and RCW 36.32.090 limits special meetings to locations "within the county." The AG read the omission of any out-of-county authority as deliberate (the canon is expressio unius est exclusio alterius).

Q: What about specific statutes that contemplate two counties working together?
A: The legislature provided narrow exceptions where the subject matter genuinely required joint action across county lines. RCW 86.13.050 sets up a procedure for joint county meetings on flood control. RCW 27.12.100(2) authorizes joint sessions to establish an intercounty library district. Outside those (and a few similar) statutes, joint in-person meetings outside the home county are not authorized.

Q: How can two counties cooperate without violating the rule?
A: The Interlocal Cooperation Act (RCW 39.34) lets public agencies enter into agreements for joint action without each board having to physically meet outside its borders. And video conferencing satisfies the in-county-meeting requirement because each board's members are physically present at their own county seat during the meeting.

Q: Can commissioners attend another county's meeting at all?
A: Yes. The AG reaffirmed AGO 2006 No. 6: members of one governing body may attend a meeting of another body (even as a quorum) without converting their visit into an OPMA meeting of their own body, provided they do not take "action." Be careful, though, because under RCW 42.30.020(3) "action" includes receiving public testimony, so passive observation is fine but accepting testimony is not.

Q: Where does the implied power to use video conferencing come from?
A: From State ex rel. Becker v. Wiley, 16 Wn.2d 340 (1943), which held that county commissioners have the implied authority to carry out their statutory duties when nothing in the law prohibits the chosen method. Nothing in RCW 36.32 prohibits video conferencing, and using it serves both the in-county-meeting rule and the practical need to coordinate with neighbors.

Background and statutory framework

Washington counties have, since territorial days, been required to hold their commissioners' meetings at the county seat. RCW 36.32.080 provides: "The county legislative authority of each county shall hold regular meetings at the county seat to transact any business required or permitted by law." RCW 36.32.090 permits special meetings outside the county seat but only "within the county" and only when the agenda involves matters of unique interest to that part of the county.

The OPMA (RCW 42.30) overlays its own rules. A "meeting" exists where there is a quorum and the body takes "action," which RCW 42.30.020(3) defines to include receipt of public testimony. The AG's discussion of attendance at another body's meeting echoes the longstanding rule that gatherings without action are not OPMA meetings (Loeffelholz v. C.L.E.A.N., 119 Wn. App. 665 (2004); In re Recall of Roberts, 115 Wn.2d 551 (1990)).

The Interlocal Cooperation Act (RCW 39.34) is the principal vehicle for formal cross-county collaboration: any function any public agency is authorized to perform may be performed jointly through an interlocal agreement, without compromising the in-county-meeting rule.

Citations and references

Statutes:
- RCW 36.32.080 – regular meetings at the county seat
- RCW 36.32.090 – special meetings within the county
- RCW 86.13.050 – joint county flood-control meetings
- RCW 27.12.100(2) – intercounty library districts
- RCW 39.34 – Interlocal Cooperation Act
- RCW 42.30 – Open Public Meetings Act

Cases:
- State ex rel. Becker v. Wiley, 16 Wn.2d 340, 133 P.2d 507 (1943), Washington Supreme Court, implied authority of county commissioners
- In re Marriage of Swaka, 179 Wn. App. 549, 319 P.3d 69 (2014), Washington Court of Appeals, remote video testimony
- Clausing v. State, 90 Wn. App. 863, 955 P.2d 394 (1998), Washington Court of Appeals, modern conferencing technology
- Lake v. Woodcreek Homeowners Ass'n, 169 Wn.2d 516, 243 P.3d 1283 (2010), Washington Supreme Court, plain meaning analysis
- Adams v. King County, 164 Wn.2d 640, 192 P.3d 891 (2008), Washington Supreme Court, expressio unius canon

Source

• Landing page: https://www.atg.wa.gov/ago-opinions/whether-county-legislative-authority-can-meet-outside-county-hold-joint-meeting-another

Original opinion text

Attorney General Bob Ferguson

COUNTIES—COUNTY COMMISSIONER—LEGISLATIVE AUTHORITY—PUBLIC MEETINGS—Whether A County Legislative Authority Can Meet Outside The County To Hold A Joint Meeting With Another County’s Legislative Authority

A county legislative authority may not meet outside of its county in order to hold a joint meeting with the legislative authority of another county unless a specific exception applies, but the legislative authorities may conduct joint meetings using video conferencing.

November 14, 2014

The Honorable Shawn P. Sant

Franklin County Prosecutor

1016 N 4th Avenue

Pasco, WA 99301

Cite As:

AGO 2014 No. 7

Dear Prosecutor Sant:

By letter previously acknowledged, you have requested our opinion on the following questions, which we have paraphrased slightly for clarity:

1. Can the legislative authority of one county meet outside its borders, and within another county’s borders, to discuss joint bi-county projects?

2. Can the legislative authorities of two counties conduct regular joint meetings utilizing video conferencing, while each legislative authority is physically located within its county seat?

BRIEF ANSWER

1. No, unless a specific statutory exception allows such a meeting. RCW 36.32.080 makes clear that regular meetings of county commissioners to transact any county business must be held at the county seat, while RCW 36.32.090 makes clear that special meetings may be held at other locations but must still occur within county borders. A few statutes allow meetings in other counties as to specific subjects, but in the absence of such an exception, any county business must be transacted at a meeting within the county borders. The legislature could, of course, allow joint meetings of county legislative authorities in more circumstances, but it has not yet done so.

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2. Yes. There is no prohibition against conducting joint meetings using video conferencing. Although there is no statute or case directly on point, the Washington Supreme Court has held that so long as there is no express prohibition of an act, county commissioners have implicit authority in the fulfillment of their statutory duties, even without a specific statutory grant of authority in every instance. We find this use of technology to be similar to the rulings by appellate courts that approve the use of video conferencing when it otherwise promotes efficiency.

BACKGROUND

Like many adjacent counties, neighboring Benton and Franklin Counties face several shared issues and are involved in several bi-county collaborations. The county boards of commissioners would like to meet jointly to discuss their joint endeavors, but such meetings in person would necessitate one of the boards meeting outside of its respective county.

ANALYSIS

1. Can the legislative authority of one county meet outside its borders, and within another county’s borders, to discuss joint bi-county projects?

RCW 36.32.080 requires that regular meetings of a county’s legislative authority be held at the county seat: “The county legislative authority of each county shall hold regular meetings at the county seat to transact any business required or permitted by law.” Meanwhile, RCW 36.32.090 provides that special meetings may be conducted outside of the county seat, but these meetings still must be within the county and may only be held at a different location when there is something on the agenda that is of unique interest or concern to that portion of the county where the special meeting is held.[1]

Read together, these statutes plainly require that a county’s legislative authority meet within the county, absent a specific exception. See, e.g., Lake v. Woodcreek Homeowners Ass’n, 169 Wn.2d 516, 526, 243 P.3d 1283 (2010) (“Plain meaning ‘is to be discerned from the ordinary meaning of the language at issue, the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole.’” (quoting State v. Engel, 166 Wn.2d 572, 578, 210 P.3d 1007 (2009))). RCW 36.32.080

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makes clear that “regular meetings . . . to transact any business required or permitted by law” shall occur “at the county seat.” One might argue that RCW 36.32.080’s reference to “regular meetings” suggests some room for an irregular meeting to be held elsewhere, potentially even outside the county, but RCW 36.32.090 makes clear that special meetings must also be held within the county. By limiting special meetings to other locations “within the county” (RCW 36.32.090), the legislature has clearly expressed the intent that all meetings that transact any county business occur within the county, except where otherwise specifically provided for.

Even if some ambiguity could be alleged here, a common tool for determining legislative intent is the maxim expressio unius est exclusio alterius, that to express one thing in a statute implies the exclusion of the other. Adams v. King County, 164 Wn.2d 640, 650, 192 P.3d 891 (2008). Here, special meetings within the county are specifically provided for, but special meetings outside of the county are not. See RCW 36.32.090. In this context, the omission of authority to hold meetings outside the county borders may be interpreted as an exclusion of that authority.

We also considered the statutes that authorize or contemplate that counties will work together on various projects. In some instances, the relevant statutes specifically provide for joint county meetings, with one county’s commissioners traveling to another county for the meeting. For example, RCW 86.13.050 provides a very specific procedure for calling a meeting of two counties in either county to pursue flood control, and RCW 27.12.100(2) provides for two or more counties to meet in a joint session to establish an intercounty library district. Since these situations are specifically provided for by statute, they are exceptions to the otherwise general rule that all county meetings take place in the county, and further confirm our reasoning.

There are other instances where joint action is contemplated without specific provision for joint meetings. For example, RCW 36.32.280 authorizes counties to work jointly to regulate watercourses and RCW 36.32.335 and .340 require coordination between counties of administrative programs. To accomplish these ends and any others that suggest joint action with another governing body, the Interlocal Cooperation Act provides a method for public agencies to enter into agreements for such joint action. See RCW 39.34. These statutes, therefore, provide other methods to accomplish joint action with other counties and allow a county to act without violating the requirement that meetings be held within the county under RCW 36.32.080.

Finally, we note that our opinion is limited to “meetings” during which “any business required or permitted” by law takes place. Our opinion does not mean that county commissioners are prohibited from attending meetings of other county legislative authorities. This office has previously advised that members of a governing body may

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attend a third party’s meeting (including a meeting of another governing body), even if the attendees would constitute a quorum of the visiting governing body, without converting that gathering into a meeting under the Open Public Meetings Act (OPMA), RCW 42.30, so long as no action is taken by the visiting governing body. AGO 2006 No. 6; see also Loeffelholz v. Citizens for Leaders With Ethics & Accountability Now (C.L.E.A.N.), 119 Wn. App. 665, 701, 82 P.3d 1199 (2004) (OPMA does not apply to meeting if no business is transacted); In re Recall of Roberts, 115 Wn.2d 551, 553-54, 799 P.2d 734 (1990) (members not prohibited from gathering so long as no action is taken). The critical question for compliance with the OPMA is whether there will be “transaction of the official business of the agency.” See RCW 42.30.020(3) (defining “action” for meetings under the OPMA). It bears mentioning that, as we cautioned in that previous opinion, “action” under the OPMA also includes the “receipt of public testimony.” RCW 42.30.020(3). Therefore, commissioners would need to consider whether they are receiving public testimony when attending the meeting of another governing body.

2. Can the legislative authorities of two counties conduct regular joint meetings utilizing video conferencing, while each legislative authority is physically located within its county seat?

The use of video conferencing would allow joint meetings of two county legislative authorities while maintaining compliance with RCW 36.32.080. While there is no authority directly on point, there is also no express prohibition regarding video conferencing during meetings of county legislative authorities. The Washington Supreme Court has found that county legislative authorities have the implied authority necessary to carry out their express statutory duties, so long as that authority is not otherwise limited in some way. State ex rel. Becker v. Wiley, 16 Wn.2d 340, 350-51, 133 P.2d 507 (1943). A legislative authority would therefore have the ability to utilize video conferencing to meet with its counterpart in another county, as this would further its ability to carry out its statutory duties while complying with the requirement that business meetings occur within county borders.

The Court’s decision in Wiley offers an example of approving county commissioners’ authority to act even when no specific provision expressly allowed the action taken. Wiley, 16 Wn.2d at 349-50. In Wiley, a specific provision required the county commissioners to provide an office for the prosecuting attorney in the courthouse, but the commissioners had also provided another office for the prosecuting attorney at a different location. Id. at 343-44. The Court looked for any limitation on their power to do so. Id. at 350-52. Since nothing expressly limited their authority in the provision of this office, the Court concluded it was within the commissioners’ authority to provide the

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additional office. Id. at 351. This conclusion was in line with previous cases finding commissioners have implied authority to carry out their duties, even when there was no express grant of specific authority in each instance. Id. at 349. [2]

We are also persuaded by analogy to judicial powers to use video conferencing when personal appearance would otherwise be inconvenient. A recently amended court rule, CR 43(a)(1), expressly allows witness testimony to be transmitted from another location when there is good cause in compelling circumstances, so long as appropriate safeguards are in place. As a matter of first impression, the Court of Appeals approved the use of testimony via Skype when the witness was in Spain and would suffer significant inconvenience if forced to appear live. In re Marriage of Swaka, 179 Wn. App. 549, 557, 319 P.3d 69 (2014). The Swaka court reviewed federal case law on point and determined that the decision to allow or deny such testimony was within the trial court’s discretion. Id. at 555-56.

The Court of Appeals has also encouraged the general use of modern technology, albeit in dicta. In Clausing v. State, 90 Wn. App. 863, 955 P.2d 394 (1998), a doctor challenged the reviewing board’s use of telephone conferencing in conducting its deliberations on his license. In rejecting his arguments, the court approved of the use of modern technology:
In this modern technological era, there are many expedient methods to conduct business. For example, video conferencing, internet conferencing, and telephone conference calls are all means to conduct transactions in an economical and efficient manner. These methods allow persons to be “present” to one another without the demands often required to achieve physical presence.

Clausing, 90 Wn. App. at 874 n.6. The court described this expediency as a sound public policy reason to reject the doctor’s challenge to the use of telephone conferencing. It also furthered the presiding officers’ ability to consider accessibility, efficiency, and economy as required by rule. Id. These same considerations support the use of video conferencing here.

If it is reasonable for courts and adjudicative agencies to use video or telephone conferences to accomplish their purposes, it is equally reasonable for county legislative authorities to use modern technology to allow county legislative authorities to conduct

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joint meetings while adhering to the requirements of RCW 36.32.080 and .090. See Wiley, 16 Wn.2d at 348 (recognizing many of the acts of county commissioners require the exercise of discretion). This allows both the county commissioners and members of the public the ability to be physically present in the county, as required by statute, while also benefitting from the “presence” of people in neighboring counties. The use of video conferencing is, therefore, within the general power and ability to exercise discretion given to county commissioners.

We trust that the foregoing will be useful to you.

ROBERT W. FERGUSON

Attorney General

KAYLYNN WHAT

Assistant Attorney General

wros

[1] RCW 36.32.090 provides:

The county legislative authority of each county may hold special meetings to transact the business of the county. Notice of a special meeting shall be made as provided in RCW 42.30.080. A special meeting may be held outside of the county seat at any location within the county if the agenda item or items are of unique interest or concern to the citizens of the portion of the county in which the special meeting is to be held.

[2] The Wiley Court referred to a previous case where the appointment of an agent by the county commissioners was approved of despite the lack of an express statutory grant of this power. Wiley, 16 Wn.2d at 348-49 (discussing State ex rel. Whitney v. Friars, 10 Wash. 348, 352, 39 P. 104 (1894)). County commissioners had also been affirmed in their power to allow the prosecuting attorney to hire an expert witness to assist in a case, even though no statute specifically granted this authority. Id. at 349-50 (discussing Williamson v. Snohomish County, 64 Wash. 233, 237, 116 P. 675 (1911)).