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Knowing the Waters – “Best Practices” for Use of Executive Sessions Allowed Under the OPMA

By Frank Chmelik of Chmelik Sitkin & Davis P.S. – August 2019

This month’s focus is on the “best practices” for use of executive sessions allowed under the Open Public Meetings Act (“OPMA”).  There is an important change in law related to the discussion of real estate matters in executive session that will affect your port.

Executive sessions have been part of the Open Public Meetings Act from its inception in 1971.  RCW 42.30.110 contains a list of some fifteen allowed topics.  Port districts are typically interested in executive sessions to discuss real estate issues, to discuss the performance of public employees, to discuss the qualifications for public employment, to discuss the qualifications of applicants for an open commission position, and to discuss litigation with the port’s lawyers.  Here are what I believe to be “best practices” concerning the use of executive sessions.

  • Don’t overuse executive sessions. If there is an executive session before each meeting the public may believe that the issues in public meetings have already been discussed or a decision has already been reached.  Always ask “do we really need an executive session, or could we discuss this matter in public?”
  • Do use a script to properly call an executive session. The law requires that the commission president publicly (a) announce the purpose of the executive session (a reference to the statute and a general description) and (b) the expected length of the executive session.  Many ports have developed a script that staff prepares in advance so that the commission president can make the proper announcement.  If you need a set of scripts (for different topics) send me an email.
  • Do follow the new rule for discussion of lease transactions. For years port districts used RCW 42.30.110(a)(ii)(c) “to consider the minimum price at which real estate will be offered for sale or lease” to discuss all aspects of a lease in executive session.   After a 2017 Washington Supreme Court decision ports must now follow a two-step process.  First, the factors that may affect price must be identified in the open public meeting.  Second, these factors and their effect on price can be discussed in executive session.  Here again, a script which list the factors should be prepared in advance so that an appropriate discussion can occur in executive session.  Of course, many of the factors will be the same for each lease.  However, there may be special factors which pertain to a particular proposal.
  • Don’t let anyone other than commissioners, port staff and port consultants attend an executive session. It is not the place to meet with potential employees, potential tenants or other elected officials.
  • Do let the public and staff know if the port commission intends on taking action after the executive session. This curtesy allows the public and staff to head home early instead of waiting to see what happens.
  • Don’t hold an executive session as a matter of course during every port commission meeting. In my experience, the public perceives that secret government is occurring.  Executive sessions are an “exception” to the general rule that public business occurs in public.  Don’t abuse the exception.
  • Do discuss matters after the executive session and in public before a vote so the public knows what is going on. Here again, I think it creates a bad perception if a commission comes out of executive session and votes on a matter without discussion.  I recommend that the commissioners have some discussion before voting.
  • Don’t discuss what occurred in an executive session. The law is clear.  RCW 42.23.070(4) provides, in part, that “no municipal officer may disclose confidential information gained by reason of the officer’s position.”  RCW 42.23.050 provides for a $500 penalty and the potential forfeiture of office.
  • Do stay on topic in an executive session. It is very easy to say “oh, while we’re here let’s talk about . . .”   Please support and follow staff and legal advice that stops conversations that drift into other topics.

In summary, executive sessions are a useful tool of port commission governance.  In my view, in order to keep this valuable tool available to port commissions, the executive session rules should be strictly followed, and executive sessions should be the exception and not the rule.

If you have a particular question for a Knowing the Waters please email me at fchmelik@chmelik.com.