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Originally published Tuesday, November 2, 2010 at 6:43 PM

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Guest columnist

Time for state AG to give public officials more guidance on open-meetings law

Examples are numerous of local state officials flouting the state Open Public Meetings Act, writes guest columnist Michael Reitz. The state Attorney General's Office should publish model rules about how officials can better meet the law and keep the public's business in public.

Special to The Times

HAVE you ever walked into a room to see your child hide his or her hands behind their back? Innocent action, perhaps, but it sure pings your parent radar.

Members of the public have a similar reaction if they believe the government is conducting some public business in secret — perhaps there's no wrongdoing, but they want to know.

The Open Public Meetings Act (OPMA) mandates transparency in government by requiring certain government meetings to be announced and open to the public. The goal is simple: The people must be informed about the activities of government so they can exercise proper oversight of their public servants.

Unfortunately, news reports are rife with examples of public business conducted in secret. In October, for example, the Pierce County Boundary Review Board came under fire when its members planned to meet in private to discuss creating a flood-control district that could impose new taxes on all property owners in Pierce County. (Public criticism convinced the review board to open its meetings.)

In August, the state Auditor's Office found that the Bear Mountain Water District violated the law when two board members committed to borrow $4.8 million and issue a revenue bond — but failed to notify the public of the meeting where this decision took place.

These are not isolated episodes. A report compiled by the state auditor revealed 600 instances between 2004 and 2007 when agencies either violated the law or raised concerns by failing to adequately document compliance. Members of the news media have long served as watchdogs to point out violations, but the decline of traditional media makes it critical to equip concerned citizens and public officials with resources to meet the goal of transparency.

Recent efforts to improve the open-meetings law in the Legislature have been stalled by municipal lobbyists and associations. The Attorney General's Office, however, could create a significant resource by publishing model rules for compliance with the law. Model rules would help fill in the gaps for public officials who seek to comply with the law, and would allow citizens to measure their local officials' actions against a set of best practices.

Whether a government body intentionally violates the law or simply ignores the spirit of the law, this can deplete the public's confidence in their elected officials. What may be an innocent action on the part of a government employee could explode into a significant controversy if members of the public perceive that public business is happening behind closed doors.

Several actions in particular create pitfalls for public officials.

For example, the open-meetings law permits governing bodies to hold executive sessions in private to discuss a restricted list of topics. Yet the shelter of off-the-record conversations can lure officials into executive session for unjustified reasons.

In 2009, the Monroe City Council was discussing a proposal to give a $4,000-per-month pay increase to the police chief. The council voted to improperly take the discussion behind closed doors.

In another situation, the Yelm Fire District board of commissioners convened numerous private sessions to discuss "criteria for a computer management consultant," "various criteria for a personnel position," "contracts," and "office personnel" — none of which is a legal basis for an executive session.

The ease of communication by e-mail can create hazards for members of a governing body. The open-meetings law requires that whenever a quorum of members take action, that meeting must be in public. Action is broadly defined to include "receipt of public testimony, deliberations, discussions, considerations, reviews, evaluations, and final actions." Thus, an e-mail exchange between a majority of members about some public business could violate the law.

The appearance of impropriety is heightened with the use of e-mail, as several members of the Olympia City Council discovered. Council members were harshly criticized after a report that individual members discussed a variety of issues by e-mail while public meetings were in progress — including counting potential votes on a decision.

A governing body can also violate the law through the use of "serial meetings" in which a majority of the members conduct a series of smaller meetings to take action or form a collective position, though a quorum is not present at the same time.

Compliance with the law is not a gavel-to-gavel obligation; public officials must also exercise care outside the office.

A Mukilteo councilwoman announced on Twitter that she and other council members were meeting at a local restaurant to debrief after an evening city council meeting. While social gatherings are certainly permissible, the comment about "debriefing" raised questions of whether public business was being conducted in a private setting.

In many reported cases, public officials were not aware that a particular action violated the Open Public Meetings Act. Many of these issues could be avoided by providing public officials with detailed guidance on how to comply with the law's provisions. Model rules from the Attorney General's Office would help remedy this problem, and would greatly serve the public's interest in remaining informed about the actions of government.

Michael Reitz is general counsel of the Evergreen Freedom Foundation and the author of a new report titled "Unlocking the Open Public Meetings Act: How to Improve Compliance and Promote Open Government."

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