§22.5 Executive Sessions

• Jurisdiction: Washington

§22.5 EXECUTIVE SESSIONS

"Executive session" is not expressly defined in the OPMA, but the term is commonly understood to mean that part of a regular or special meeting of the governing body that is closed to the public. A governing body may hold an executive session only for the purposes specified in RCW 42.30.110(1)(a) -(o), and only during a regular or special meeting.

Comment: One authorization outside of the OPMA for a confidential executive session for a public agency governing body is provided in RCW 70.44.062(2) for a public hospital district's quality improvement committee when meeting concerning health care providers' clinical or staff privileges, and for the district's board of commissioners when meeting to review the committee's report. See Cornu-Labat v. Hosp. Dist. No 2, 177 Wn.2d 221, 298 P.3d 741 (2013). In 2019, the legislature created a similar provision for public hospitals in Laws of 2019, ch. 162, §1, providing that meetings proceedings, and deliberations concerning clinical or staff privileges and concerning quality improvement committee reports or activities can be conducted in executive session as long as any final action is done in public session. RCW 70.41.205(1). The same legislation, Laws of 2019, ch. 162, §2, also added a subsection (o) to the list of authorized executive session purposes in RCW 42.30.110, to "consider information regarding staff privileges or quality improvement committees" under RCW 70.41.205. RCW 42.30.110(1)(o).

A governing body may hold a meeting for the sole purpose of having an executive session as long as it complies with the Act's procedural requirements.

As a matter of widely recognized practice, attendance at an executive session need not be limited to the members of the governing body. Persons other than the members of the governing body may attend an executive session at the invitation of the governing body, but those invited should have some relationship to the matter being addressed in the closed session or be in attendance to otherwise provide assistance to the governing body. For example, staff of the governing body or of the governmental entity may be needed to present information or take notes or minutes. (However, minutes are not required to be taken at an executive session. See RCW 42.30.035) Persons from outside the agency may be invited if their presence is necessary to fulfill the purpose of the executive session; otherwise persons from outside the agency should not be in attendance.

Although a governing body may choose to discuss authorized matters in executive session as permitted by RCW 42.30.110, that does not prevent the governing body from doing so in an open session instead. See In re Recall of Bolt, 177 Wn.2d 168, 177, 298 P.3d 710 (2013) (the Act plainly allows but does not require executive session to evaluate complaint against a public officer).

(1) Procedural requirements

An executive session must be preceded by an announcement by the presiding officer in an open meeting. The announcement must state two things: (1) the purpose of the executive session and (2) the time when the executive session will end. See RCW 42.30.110(2).

The announced purpose of the executive session must be one of the statutorily identified purposes for which an executive session may be held. Id. The announcement must contain enough detail to identify the purpose as falling within one of those identified in RCW 42.30.110(1). For example, it would not be sufficient for a presiding officer to declare simply that the governing body will now meet in executive session to discuss "personnel matters." Discussion of general personnel matters is not an authorized purpose for holding an executive session; only certain specific issues relating to personnel may be addressed in executive session. See RCW 42.30.110(1)(f), (g). The state Supreme Court, in Miller v. City of Tacoma, 138 Wn.2d 318, 327, 479 P.2d 429 (1999), emphasized that "only the action explicitly specified by the exception may take place in executive session."

The time estimated for the length of the executive session may be an issue if the governing body concludes the executive session earlier than the announced time. In such a case, the governing body should not reconvene in open session until the time originally stated. Otherwise, the public may, in effect, be excluded from that part of the open meeting occurring between the actual close of the executive session and the announced time. On the other hand, if the executive session is not finished at the originally stated time, it may be extended only if the presiding officer announces to the public at the meeting place that it will be extended to a new stated time. See RCW 42.30.110(2).

(2) Duty of confidentiality as to matters discussed in executive session

The attorney general advises that participants in a properly convened executive session may not disclose information discussed during the session. AGO 2017 No. 5 (Aug. 3,2017). Although not expressly stated in the Act, the duty of participants in an executive session not to disclose the information discussed therein "is part and parcel of the concept of an executive session." Id. at 6. This duty extends to information relating to the statutorily authorized purpose for convening the executive session and not already publicly disclosed. The attorney general relied on out-of-state authority treatises, and legislative history to conclude that maintaining confidentiality "is a legal obligation, and not solely a moral one[.]" Id. at 7.

Any person covered by the Code of Ethics of Municipal Officers, Chapter 42.23 RCW, would violate the code by disclosing information made confidential by the Act. AGO 2017 No. 5, at 10-11. The Code of Ethics prohibits disclosing "confidential information gained by reason of the officer's position," RCW 42.23.070(4); and applies to "all elected and appointed officers of a municipality, together with all deputies and assistants of such an officer, and all persons exercising or undertaking to exercise any of the powers or functions of a municipal officer," RCW 42.23.020(2). Further, disclosing information learned in executive session could constitute a misdemeanor under RCW 42.20.100 or official misconduct under RCW 9A.80.010. AGO 2017 No. 5, at 11-14.

A governing body can enforce the confidentiality of its executive sessions by obtaining a court order pursuant to RCW 42.30.130, authorizing an action for mandamus or injunction to stop a violation of the Act. The attorney...