HomeMy WebLinkAboutopma_electronic communications_practice tipsOPMA – ELECTRONIC COMMUNICATIONS
PRACTICE TIPS
For Local Government Success
These practice tips are intended to provide practical information to local government
officials and staff about electronic communications and requirements under the Open
Public Meetings Act (OPMA), chapter 42.30 RCW. Electronic communications between
members of an agency’s governing body can implicate the OPMA, and these practice
tips will help guide you in identifying and addressing key issues in this regard.* For more
information and resources visit www.mrsc.org/opmapra.
1
An Email Exchange Can Constitute a Meeting
If you, as a member of the governing body (e.g., city council, board of commissioners, planning
commission), communicate with other members of the governing body by email, keep in mind that email
exchanges involving a majority of members of the governing body can constitute a “meeting” under the
OPMA. This principle also applies to text messaging and instant messaging.
What types of email exchanges can constitute a meeting? If a majority of the members of the governing
body takes “action” on behalf of the agency through an email exchange, that would constitute a meeting
under the OPMA. Note that taking “action” under the OPMA can occur through mere discussion of agency
business, and that any “action” may be taken only in a meeting open to the public. The participants in the
email exchange don’t have to be participating in that exchange at the same time, as a “serial” or “rolling”
meeting can occur in violation of the OPMA. However, the participants must collectively intend to meet to
conduct agency business.
Recommendations: As a member of the governing body, consider the following tips to avoid potential
OPMA violations:
• Passive receipt of information via email is permissible, but discussion of issues via email by the
governing body can constitute a meeting.
• An email message to a majority or more of your colleagues on the governing body is allowable when
the message is to provide only documents or factual information, such as emailing a document to all
members for their review prior to the next meeting.
• If you want to provide information or documents via email to a majority of members of the governing
body, especially regarding a matter that may come before the body for a vote, have the first line of the
email clearly state: “For informational purposes only. Do not reply.”
• Unless for informational purposes only, don’t send an email to all or a majority of the governing body,
and don’t use “reply all” when the recipients are all or a majority of the members of the governing
body.
• Alternatively, rather than emailing materials to your colleagues on the governing body in preparation
for a meeting, have a designated staff member email the documents or provide hard copies to each
member. It’s permissible, for example, for a staff member to communicate via email with members of
the governing body in preparation for a meeting, but the staff member needs to take care not to share
any email replies with the other members of the governing body as part of that email exchange.
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2
Phone Calls and Voice Messages Can Constitute a Meeting
As with email exchanges, if a majority of the members of the governing body is taking "action" (see above)
on behalf of the agency through phone calls or a voice mail exchange, that would constitute a meeting.
Such a “telephone tree” occurs, for example, when members call each other to form a majority decision. As
above, the calls and messages can constitute a serial or rolling meeting if the members collectively intend to
meet and conduct agency business.
3
Key Consideration Related to Conferring to Call a Special Meeting
Under RCW 42.30.080, a special meeting (in contrast to a regular meeting) may be called at any time by the
presiding officer of the governing body or by a majority of the members of the governing body. In order to
give effect to this authority granted under RCW 42.30.080, we believe it’s permissible for a majority of the
members of the governing body to confer outside of a public meeting for the sole purpose of discussing
whether to call a special meeting. This includes conferring for that purpose via phone, email or other
electronic means.
4
Use of Social Media Can Implicate the OPMA
Question: If members of the governing body use social media (e.g., through a Facebook page or Twitter
feed) to host a discussion about issues related to the agency, and the discussion includes comments
from members of the governing body, could that violate the OPMA?
Answer: If the discussion includes comments from a majority of the members of the governing body,
that discussion could constitute a public meeting under the OPMA. There’s no authority under the
OPMA regarding what would constitute adequate public notice – if that’s even possible – for this kind of
virtual meeting, so it’s best to avoid this type of discussion on social media.
Recommendation: Social media can be an effective tool to solicit comments from the public, but social
media shouldn’t be used by your agency’s governing body to collectively formulate policy.
5
Failure to Comply with the OPMA Can Be Costly
Violation of the OPMA can result in personal liability for officials who knowingly violate the OPMA and in
invalidation of agency actions taken at a meeting at which an OPMA violation occurred. Attorney fees and
court costs are awarded to successful OPMA plaintiffs. OPMA violations can also lead to a loss of public
trust in the agency’s commitment to open government.
*DISCLAIMER: These practice tips are meant to provide practical information to local government officials and staff about electronic records and requirements
under the OPMA. The tips aren’t intended to be regarded as specific legal advice. Consult with your agency’s attorney about this topic as well.May 2016