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"Ford, Tim (ATG)" <TimF@ATG.WA.GOV> RE: OPMA Questions: Violations of Law October 7, 2011 3:50:25 PM PDT "Jessica Olson" <>

Jessica Olson, I apologize for the delay in providing answers to your email. My role as the Attorney Generals Open Government Ombudsman includes providing information, technical assistance, and training on the provisions of the OPMA. See RCW 42.30.210. I dont conduct investigations or make any legal conclusions as to whether an agency or individual violated the OPMA. However, I am able to provide general information that answers some of your questions. One final caveat, I am not authorized to provide legal advice or representation and my answers are informal. Other attorneys may construe the laws differently. General Answer There is an implicit presumption that the OPMA could only be violated by members of a governing body acting collectively, and not by an individual elected official acting alone. The OPMA clearly applies to the meetings and actions of a governing body. See RCW 42.30.030; RCW 42.30.060. A governing body is defined as a multimember body. See RCW 42.30.020(2). Individual members of a governing body are personally liable but only for the willful actions of the governing body which are in violation of the OPMA. See RCW 42.30.120. Members of a governing body can be enjoined from violations by a lawsuit. See RCW 42.30.130. But, again that presumes that it takes members [more than one] to violate the OPMA. A single member lacks authority to take any unilateral action on behalf of the governing body because action under the OPMA is defined as the transaction of the official business of a public agency by a governing body. Therefore the OPMA never contemplates that a single member acting alone could violate the OPMA. Please see my comments below in response to your specific questions.

From: Jessica Olson [] Sent: Wednesday, September 21, 2011 10:04 PM To: Ford, Tim (ATG) Subject: OPMA Questions: Violations of Law

Mr. Ford -As you may know, the Everett School Board has censured me on two occasions for multiple violations of the OPMA (Open Public Meetings Act). I do not agree with their assessments, and requested in February of 2011 that they do their civic duty and report them to you if they were confident a law had been broken. As of this date, not only have they have not yet done so, they in fact have censured me for the same violations a second time. In the interests of transparency, I now report these violations myself. Please advise me on whether or not it appears the law has been broken, so that either I may be held accountable for these violations, or the Everett School District may retract these accusations should they turn out to be false. ALLEGED VIOLATION #1 Director Olson has violated the Open Public Meetings Act by intruding upon a meeting in which the board president and vicepresident were meeting with staff and legal counsel. On this occasion, I entered the room in which Directors Peterson and Russell were meeting with Dr. Cohn and his attorney, discussing district matters. The moment I entered, there was a quorum present. However, upon my entry, the meeting was ended, no discussion of District business took place and no action as defined by law was taken. Question #1: Is a mere quorum of Directors in a room a violation of OPMA, or must 'action' occur? A potential violation could only occur if there is action taken on behalf of the board whether by a quorum of the board, or by a committee acting on behalf of the board. The OPMA clearly states that it is not a violation for a majority of the members of a governing body to travel together or gather for purposes other than a regular meeting or a special meeting as these terms are used in this chapter: PROVIDED, That they take no action as defined in this chapter. See RCW 42.30.070. Question #2: If it was a violation, can only one Director violate the OPMA, or would all Directors involved violate it the moment action was taken? A single director acting alone could not violate the OPMA. The OPMA is implicated only when there is collective action (on behalf of the board) on issues that may or will come before the District for a vote. Wood v. Battle Ground School District, 107 Wn. App. 550, 565 (2001).