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Under RCW 70.44.140, if a hospital district has an estimate for work around $1 million and the lowest bid is $1.6 million, must the district reject all bids?



The district cannot let a contract in excess of the estimated cost of the materials or work. RCW 70.44.140 states in relevant part:

...PROVIDED, HOWEVER, That no contract shall be let in excess of the estimated cost of the materials or work, or if, in the opinion of the commission, all bids are unsatisfactory, they may reject all of them and readvertise, and in such case all bid proposal security shall be returned to the bidders. ...

We did not find any case law, attorney general opinions, or other legal authority indicating that a hospital district can accept a bid that exceeds the estimated cost. The district can reject all bids if the bids exceed the estimated cost and readvertise.

Note also that RCW 39.04.020 and RCW 70.44.110 contain explicit requirements that the district approve an estimate for public works projects.

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Under what circumstances can a committee of the Board of Commissioners meet and not violate the OPMA? More specifically, consider the following scenario: A committee of the hospital district Board of Commissioners (Board), which includes two members of the five member Board (i.e., less than a majority of the Board), meets with the CEO and a few other selected individuals to, in part, consider a draft strategic plan and review public comments that have been submitted by citizens regarding the plan. The committee does not receive or take public comment at the meeting but rather reviews comments that have been submitted by the public through the district's Web site. The committee's role is to act in an advisory role and make recommendations to the full Board. 



Under the OPMA, if a majority of the Board of Commissioners is meeting to transact the official business of the hospital district, the open public meeting requirements of the OPMA apply to the meeting. The issue here is under what circumstances the open meeting requirements of the OPMA apply when less than a majority of the Board meets.

Whether a violation of the OPMA has occurred is heavily dependent on the facts. While in many circumstances a committee of the Board would be subject to the OPMA, there are circumstances that the OPMA would not apply to meetings of such a committee. Under RCW 42.30.020(2), a "governing body" subject to the OPMA is defined to include a:

... committee thereof when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment.

Although the definition of "governing body" under RCW 42.30.020(2) refers to "when" a committee acts so as to come within that definition, courts have been unclear, for example, about whether a committee is subject to the OPMA for all of its meetings when it is only at some meetings that a committee is acting in that manner. See, Clark v. City of Lakewood, 259 F.3d 996 (9th Cir. 2001).

According to a formal opinion of the state attorney general's office, a committee acts on behalf of the governing body "when it exercises actual or de facto decisionmaking power." AGO 1986 No. 16, at 12. In that opinion, the attorney general's office concludes:

In our judgment, this legislative history establishes that the Legislature intended the narrower definition of the phrase "acts on behalf of." Based on this narrow definition, we conclude that a committee acts on behalf of the governing body when it exercises actual or de facto decisionmaking authority for the governing body. This is in contrast to the situation where the committee simply provides advice or information to the governing body. In our opinion such advisory committees do not act on behalf of the governing body and are therefore not subject to the Act.
Since your question does not pose a specific factual situation, we are unable to say precisely when a committee acts on behalf of the governing body and is thus subject to the Act. The line between exercising actual or de facto decisionmaking powers and simply giving advice will obviously depend upon the responsibilities and powers of the particular committee in question. Two decisions by the Supreme Court of Oklahoma interpreting that state's open meeting law, prior to its repeal and reenactment in 1977, illustrate this distinction.
Oklahoma's prior open meeting law provided that all meetings of certain governing bodies must be public meetings. 25 O.S. 1971 ยง 201. In Sanders v. Benton 579 P.2d 815 (Okla. 1978), the court considered the application of the open meeting law to a citizens advisory committee impaneled to provide information to assist in determining the site for a community treatment center. The plaintiff claimed that the citizens advisory committee was subject to the open meeting law because it was acting for and on behalf of the Board of Corrections, which was clearly a governing body subject to the Oklahoma law. In Sanders, the court ruled that the citizens advisory committee was not subject to the open meeting law because the citizens advisory committee exercised no governmental powers or decisionmaking authority.
The court in Sanders distinguished its decision in Carl v. Board of Regents, 577 P.2d 912 (Okla. 1978). Carl concerned an admissions board of the University of Oklahoma. The court ruled that the admissions board was subject to the open meeting law because the Board of Regents, which was ultimately responsible for admissions, had delegated decisionmaking authority to the admissions board to select students for the college of medicine.
In our opinion a committee acts on behalf of the governing body when it exercises actual or de facto decisionmaking power, such as the admissions board in Carl. Such a committee is subject to the Act whenever it meets to conduct business related to the exercise of its decisionmaking power. An advisory committee, such as the citizens advisory committee in Sanders, is not subject to the Act.
A committee that exercises decisionmaking power and also serves a separate advisory function is subject to the Act when it meets to conduct business related to the exercise of decisionmaking power. To the extent the committee has a separate advisory role, it is not subject to the Act when it meets to conduct business related to that advisory role. However, where a committee performs both functions it is subject to the Act unless the advisory function can be separated from the exercise of its decisionmaking authority.

Id. at 11-13.

In a more recent court decision, Loeffelholz v. C.L.E.A.N., 119 Wn. App. 665 (2004), the court explains in part:

... they could not be a "governing body" unless they had policy-making or rule-making authority; [Fn. 120] and nothing in the record shows that they had policy-making or rule-making authority. Accordingly, CLEAN cannot rely on the OPMA in this case.

[120] RCW 42.30.020(2); Refai v. Cent. Wash. Univ., 49 Wn. App. 1, 13, 742 P.2d 137 (1987) (faculty committee was not "governing body" due to lack of policy-making authority), review denied, 110 Wn.2d 1006 (1988). Compare Cathcart v. Andersen, 85 Wn.2d 102, 107, 530 P.2d 313 (1975) (faculty was "governing body" where it had policy-making authority). In neither of these cases was it disputed that a meeting had been held. In our case, by way of contrast, the evidence does not show that a meeting was ever held or that those participating had policy-making authority.

Id. at 704.

Note, however, that in an informal letter to the Central Kitsap School District Board, dated March 21, 2008, the open government ombudsman for the attorney general's office takes a more expansive view than the above referenced prior formal opinion (AGO 1986 No. 16) regarding when a committee is subject to the OPMA.

The attorney general's office also has an Open Government Internet Manual available on its website that includes a detailed explanation regarding committees under Chapter 3 - OPEN PUBLIC MEETINGS ACT - GENERAL AND PROCEDURAL PROVISIONS, Section 3.3 - What Entities Are Subject To The Act.

Whether a particular meeting of a committee of the Board is subject to the OPMA depends upon the specific facts related to that committee and what the committee does at the meeting in question. Some local governments, to avoid legal challenge and/or issues with perception, regard all meetings of all committees of their governing body as open to the public. However, this does not mean that a local government necessarily violates the OPMA by having a committee of the governing body meet at a meeting not open to the public.

In sum, when a committee is meeting and the committee is not, on behalf of the governing body, conducting hearings, taking testimony or public comment, or otherwise exercising actual or de facto decisionmaking authority, and is merely acting as an advisory body to the governing body, such a committee meeting generally would not be subject to the OPMA. A key issue here is whether the committee's role in reviewing the public comments that were received by the district previously would be regarded as "taking testimony or public comment" under RCW 42.30.020(2). Although if in doubt it is best to be more open than less so, the answer in this situation is somewhat unclear, particularly to the extent the committee is merely advising the Board about the issue and is not exercising decisionmaking authority.


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Is a meeting of the Board or Commissioners to discuss the status of union negotiations considered an executive session?



RCW 42.30.140(4) states that "this chapter" (meaning the Open Public Meetings Act, chapter 42.30 RCW) does not apply to:

(4) (a) Collective bargaining sessions with employee organizations, including contract negotiations, grievance meetings, and discussions relating to the interpretation or application of a labor agreement; or (b) that portion of a meeting during which the governing body is planning or adopting the strategy or position to be taken by the governing body during the course of any collective bargaining, professional negotiations, or grievance or mediation proceedings, or reviewing the proposals made in the negotiations or proceedings while in progress.

(Emphasis added.)

If the activity, such as review of a proposal made in labor agreement negotiations, falls within RCW 42.30.140(4), review by the Board of Commissioners of the proposal would be outside the OPMA. It can be helpful to refer to such a session as a "closed session" and not an executive session in order to avoid confusion, because sessions under RCW 42.30.140(4) are something different than an executive session and the requirements related to executive sessions do not apply.

In terms of additional legal authority to help explain the unique nature of RCW 42.30.140(4), the decision in IAM and AW, Local 160 v. City of Fife, Decision 5645 PECB (Public Employment Relations Commission) (August 21, 1996), discusses the legislative history and states:

In 1989, the Washington State Court of Appeals decided Mason County v. Public Employment Relations Commission, 54 Wn. App. 36 (1989). In Mason County, two of the three county commissioners participated in collective bargaining negotiation sessions. The court held that the exemption under the Open Public Meetings Act for collective bargaining sessions was limited and that the act required the collective bargaining sessions to be conducted in open public meetings.
In enacting the amendment to RCW 42.30.140 in 1990, the Legislature ended the need to reconcile the OPMA and the PECBA.
When considered in light of: (1) The Supreme Court decision in Rose v. Erickson, 106 Wn.2d 420 (1986) (interpreting RCW 41.56.905 as resolving conflicts between Chapter 41.56 RCW and other statutes in favor of the PECBA); (2) previous legislative actions which limited OPMA exemptions of preliminary actions taken at executive sessions (while retaining final actions under coverage of the OPMA); and (3) the language in the Senate and House committee reports showing concern about the effects of Mason County v. PERC, supra; the expansive language used in RCW 42.30.140(4)(a) indicates the Legislature intended to altogether exempt collective bargaining negotiations from the OPMA. RCW 42.30.140(4)(a) has:
  • Allowed participation of any number of decisionmakers, including the governing body of a public employer as defined in RCW 42.30.020(2), to directly participate in private collective bargaining sessions without violating the OPMA;
  • Made certain that any "action," including final action as defined in RCW 42.30.020(3), taken at a collective bargaining session for the purpose of collective bargaining negotiations with a labor organization, is not void under the OPMA;
  • Avoided subjecting members of a governing body who attend private collective bargaining sessions to penalties under RCW 42.30.120; and
  • Avoided subjecting elected officials who attend private collective bargaining sessions to recall petitions under Chapter 29.82 RCW, based on violations of the OPMA.
Collective bargaining is not defined in the OPMA, but RCW 42.30.140(4)(a) uses the term "collective bargaining sessions" followed by examples which touch on contract administration as well as contract negotiations. The definition of collective bargaining found in RCW 41.56.030(4) also describes a process that is broader than contract negotiations:
(4) "Collective bargaining" means the performance of the mutual obligations of the public employer and the exclusive bargaining representative to meet at reasonable times, to confer and negotiate in good faith, and to execute a written agreement with respect to grievance procedures and collective negotiations on personnel matters, including wages, hours and working conditions, which may be peculiar to an appropriate bargaining unit of such public employer, except that by such obligation neither party shall be compelled to agree to a proposal or be required to make a concession unless otherwise provided in this chapter. . . .
The process established by Chapter 41.56 RCW includes a variety of dispute resolution mechanisms (including negotiation, mediation and arbitration), as well as adjudicative proceedings under the Administrative Procedure Act (APA). Using Chapter 41.56 RCW as a frame of reference to interpret the term collective bargaining sessions in the OPMA, it is concluded that the OPMA now exempts meetings, conferring, and negotiating on collective bargaining matters, as well as executing written contracts reflecting the terms agreed upon in collective bargaining.

Id. at 30-33 (emphasis added).

Note also that RCW 42.30.110(1)(g) (related to public employment) regarding executive sessions, specifically states "subject to RCW 42.30.140(4)," such that the law governing executive sessions under the OPMA is subject to RCW 42.30.140(4).


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Can a hospital district Board of Commissioners vote on candidates for district superintendent or CEO in open session without naming the candidates, i.e., assigning numbers to the candidates and voting on the candidates based on those numbers?



In our opinion, this would not be permitted by the OPMA, as it appears to be a form of secret ballot, which is prohibited by RCW 42.30.060(2) ("No governing body of a public agency at any meeting required to be open to the public shall vote by secret ballot."). Although the public would know upon which numbered candidate each member would be voting, that knowledge would be meaningless, because the public would not know the actual person for which the members are voting. Although the candidate with the most votes would have to be named and the public would know who voted for that candidate, the public would still not know who the other candidates were. That is not an open process.

While we realize that the purpose of the proposed procedure here is to keep the names of the applicants/candidates confidential (for the same reasons behind the public disclosure exemption in RCW 42.56.250(2) ("All applications for public employment [is exempt from disclosure], including the names of applicants, resumes, and other related materials submitted with respect to an applicant;"), the legislature has not authorized keeping those names confidential when appointments must be made by a governing body in open session. More generally, most appointments are, of course, made by the executive branch of an agency.


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Are you familiar with public hospital districts that have commissioners representing areas or districts within their service area (or district)? Our board would like to consider doing that with our five commissioner positions.



RCW 70.44.040(1) provides:

A public hospital district initially may be created with three, five, or seven commissioner districts. At the election at which the proposition is submitted to the voters as to whether a district shall be formed, three, five, or seven commissioners shall be elected from either three, five, or seven commissioner districts, or at-large positions, or both, as determined by resolution of the county commissioners of the county or counties in which the proposed public hospital district is located, all in accordance with RCW 70.44.054. ...

RCW 70.44.040(2) requires that a candidate for commissioner of a commissioner district must be a registered voter who resides in that district, and that voters in the entire hospital district may vote in primary or general elections to elect a person as commissioner of the commissioner district.

RCW 70.44.042 provides that a hospital district can "reestablish" commissioner districts through a vote of the voters of the district at a general or special election held for the purpose of reestablishing commissioner districts. The election can be initiated either by resolution of the board of commissioners or by a petition of ten percent of the voters based on the total vote cast in the last district general election in the hospital district. The successful resolution and/or petition would put forward the proposition for the voters of the hospital district to determine whether to reestablish commissioner districts.

Depending on the circumstances, RCW 70.44.047 (redrawing boundaries of commissioner districts) and/or RCW 70.44.054 (increase in number of commissioners and commissioner districts) could apply. Note that there is also a helpful discussion about this topic in the AWPHD Legal Manual (see pp. 50-51).

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