Citizens All. for Prop. Rights Legal Fund v. San Juan County

• Court: Washington Supreme Court
• Decided: October 1, 2015
• Docket: 90500-2
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

CITIZENS ALLIANCE FOR PROPERTY RIGHTS ) LEGAL FUND, a \1\/ashington nonprofit ) corporation, ) No. 90500-2 ) Petitioner, ) En Bane ) V. ) " ) Filed (JCT 0 1 IW15 SAN JUAN COUNTY, a Washington municipal ) corporation, and SAN JUAN COUNTY CRITICAL ) AREAS ORDINANCE/ SHORELINE MASTER ) PROGRAM IMPLEMENTATION COMMITTEE, a ) subcommittee of the San Juan County Council, ) and its Members RICHARD FRALICK, PATTY ) . MILLER, and LOVEL PRATT, ) ) Respondents. ) )

WIGGINS, J.-ln this case, the Citizens Alliance for Property Rights Legal

Fund (CAPR) seeks to invalidate several ordinances passed by the governing

council of San Juan County (County), alleging violations of Washington's Open

Public Meetings Act of 1971, chapter 42.30 RCW (OPMA). Specifically, CAPR

asserts that four ordinances passed as part of a state-mandated update of the

County's critical area ordinances (CAO) should be voided because the ordinances

had first been discussed by an informal group of county officials and employees

(CAO Team) in meetings that did not comply with the OPMA. We reject CAPR's Citizens Alliance for Property Rights Legal Fund v. San Juan County, No. 90500-2

arguments because (1) none of the CAO team meetings constituted "meetings" of

the San Juan County Council (Council) under the OPMA, (2) the CAO Team itself

was not a "committee" of the Council, and (3) the CAO Team never acted on behalf

of the Council.

BACKGROUND

At all times relevant to this appeal, the County operated under a home rule

charter that vested legislative functions in the Council, consisting of six voting

members. SAN JUAN COUNTY HOME RULE CHARTER art. 2, §§ 2.1 0, 2.11, 2.30(1 ).

The charter specified that the Council cannot act without the affirmative vote of four

of its members. /d. § 2.40(3). Further, the charter placed all administrative and

executive functions under the purview of a county administrator hired by the

Council. /d. §§ 3.41, 3.43. During the relevant time period, Pete Rose served as

county administrator.

In 2010, the County began the process of updating its CAO as required by

the Growth Management Act (GMA), chapter 36. 70A RCW. The County had

initiated the CAO update process on two prior occasions but had failed to pass the

required update both times. By the time the County initiated the third effort to update

the CAO, the required update was already four years overdue.

The CAO Team appears to have been an informal group that met

occasionally to discuss how to implement the CAO update. The informal nature of

the team is reflected by the near-complete absence of official documents

referencing the team or its work. For example, the record provides few clues as to

how the CAO Team came into existence. It does not appear that it was created

2 Citizens Alliance for Property Rights Legal Fund v. San Juan County, No. 90500-2

through a formal legal instrument such as a legislative resolution or an executive

directive. Likewise, no documents in the record indicate how the members of the

GAO Team were chosen-in fact, none of the documents in the record suggests

that the GAO Team even had an official list of members. The record also does not

contain any documents indicating that the GAO Team had any formal purpose, list

of responsibilities, or official relationship to other county agencies.

This informal group met approximately 26 times between July 2010 and

February 2012. The GAO Team did not keep attendance records, and the record

provides little information on who attended many of the individual team meetings.

In a response to an interrogatory, the County stated that 10 individuals attended at

least one GAO team meeting: Pete Rose, the county administrator; Jon Cain, a

deputy prosecutor from the San Juan County Prosecuting Attorney's Office; Paul

Adamus, a consultant; Shireene Hale, Janice Biletnikoff, Colin Maycock, and Rene

Beliveau, all members of the County's planning staff; and three members of the

Council-Richard Fralick, Lovel Pratt, and Patty Miller. CAPR does not allege, and

the record does not indicate, that any members of the Council besides Fralick, Pratt,

and Miller attended any GAO team meetings.

During the period that the GAO Team was meeting, the Council continued its

work related to the GAO update. The record indicates that the Council held 70

different meetings, workshops, hearings, or joint hearings regarding the GAO

update between 2010 and 2012. On April 26, 2012, San Juan County Prosecuting

Attorney Randall Gaylord submitted a memorandum to the Council suggesting that

all gatherings involving at least three members of the Council should comply with

3 Citizens Alliance for Property Rights Legal Fund v: San Juan County, No. 90500-2

the OPMA. Following this memorandum, the CAO Team did not hold any further

meetings.

After the CAO Team ceased meeting, the Council met over 25 times and

continued to hold public discussions, hearings, and readings of the CAO update. In

December 2012, the Council completed the CAO update process by adopting the

four ordinances that CAPR now seeks to invalidate. All four of these ordinances

were passed by a five to one vote of the Council. None of the adopted ordinances

refers to the work or recommendations of the CAO Team.

Shortly before the ordinances were adopted, CAPR filed a complaint against

the County, the CAO Team, and the three council members who attended CAO

team meetings-Fralick, Miller, and Pratt. After discovery was completed, the

County moved for summary judgment. The trial court granted the motion and

denied CAPR's motion for reconsideration.

CAPR appealed. The Court of Appeals affirmed the trial court's dismissal of

CAPR's complaint, concluding that the OPMA did not apply to the CAO team

meetings because CAPR submitted no evidence that a majority of the Council

attended CAO team meetings or that the CAO Team acted "on behalf of" the

Council, as required by the OPMA. See Citizens All. for Prop. Rights Legal Fund v. San Juan County, 181 Wn. App. 538, 545, 326 P.3d 730, review granted, 181

Wn.2d 1015 (2014).

STANDARD OF REVIEW

We review grants of summary judgment de novo, engaging in the same

inquiry as the trial court. Amalgamated Transit Union Local587 v. State, 142 Wn.2d

4 Citizens Alliance for Property Rights Legal Fund v. San Juan County, No. 90500-2

183, 206, 11 P.3d 762, 27 P.3d 608 (2000). Summary judgment is proper where

there are no genuine issues of material fact and the moving party is entitled to

judgment as a matter of law. CR 56( c).

Construction of a statute is a question of law that we review de novo. State

v. Ammons, 136 Wn.2d 453, 456, 963 P.2d 812 (1998). On matters of statutory

interpretation, our "fundamental objective is to ascertain and carry out the

Legislature's intent." Oep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9,

43 P.3d 4 (2002). "[l]f the statute's meaning is plain on its face, then the court must

give effect to that plain meaning as an expression of legislative intent." /d. at 9-10.

When determining a statute's plain meaning, we consider "the ordinary meaning of

words, the basic rules of grammar, and the statutory context to conclude what the

legislature has provided for in the statute and related statutes." In re Forfeiture of

One 1970 Chevrolet Chevelle, 166 Wn.2d 834,838-39,215 P.3d 166 (2009). We

consider other matters, including legislative history, if "the statute remains

susceptible to more than one reasonable meaning" after completing this plain-

meaning analysis. Campbell & Gwinn, 146 Wn.2d at 12.

ANALYSIS

We conclude that the OPMA did not apply to the CAO team meetings. The

OPMA applies only to meetings of "'[g]overning bod[ies],"' a term that applies both

to legislative entities such as the Council and "committee[s] thereof" when the

committee "acts on behalf of" the legislative entity. RCW 42.30.020(2). Here, none

of the CAO team meetings constituted meetings of the Council itself under the

OPMA because none of the meetings included a majority of council members.

5 Citizens Alliance for Property Rights Legal Fund v. San Juan County, No. 90500-2

Moreover, the CAO Team was not a "committee thereof" with respect to the Council

because CAPR produced no evidence indicating that the Council created the CAO

Team. The CAO Team also never "acted on behalf of" the Council and thus could

not have constituted a "governing body" under the OPMA even if the Council had

created it. We therefore affirm the dismissal of CAPR's complaint.

I. Statutory Construction

RCW 42.30.030 sets forth the OPMA's prohibition against closed public

meetings:

All meetings of the governing body of a public agency shall be open and public and all persons shall be permitted to attend any meeting of the governing body of a public agency, except as otherwise provided in this chapter.

(Emphasis added.) Another section of the OPMA provides the definitions of the

above-emphasized terms:

(2) "Governing body" means the multimember board, commission, committee, council, or other policy or rule-making body of a public agency, or any committee thereof when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment.

(4) "Meeting" means meetings at which action is taken.

RCW 42.30.020 (emphasis added). Unfortunately, while subsection (4) purports to

define "meeting," it actually does no more than specify when meetings are subject

to the OPMA without clarifying what a "meeting" itself is. The OPMA also does not

provide any guidance on the meanings of "committee thereof" and "acts on behalf

of" as those terms are used in subsection (2)'s definition of "governing body."

6 Citizens Alliance for Property Rights Legal Fund v. San Juan County, No. 90500-2

In giving meaning to an undefined term, we "consider the statute as a whole

and provide such meaning to the term as is in harmony with other statutory

provisions." Heinsma v. City of Vancouver, 144 Wn.2d 556, 564, 29 P.3d 709

(2001 ). Though undefined terms in a statute are given their common law or ordinary

meanings, see State v. Chester, 133 Wn.2d 15, 22, 940 P.2d 1374 (1997), the

words "must be read in the context of the statute in which they appear, not in

isolation or subject to all possible meanings found in a dictionary." State v. Lilyblad,

163 Wn.2d 1, 9, 177 P.3d 686 (2008). "Ultimately, in resolving a question of

statutory construction, this court will adopt the interpretation which best advances

the legislative purpose." Bennett v. Hardy, 113 Wn.2d 912, 928, 784 P.2d 1258

(1990).

The attorney general's office (AGO) construed both "committee thereof" and

"acts on behalf of" in an opinion issued in 1986, three years after the legislature

amended the OPMA by adding those terms to the definition of "governing party."

See 1986 Op. Att'y Gen. No. 16, http://www.atg.wa.gov/ago-opinions/applicability-

open-public-meetings-act-committee·-governing-body. "Although not controlling,

attorney general opinions are entitled to great weight." Thurston County v. City of

Olympia, 151 Wn.2d 171, 177, 86 P.3d 151 (2004). This is particularly true where

the AGO issues an opinion shortly after the passage of legislation and where the

legislature fails to amend the statute in response to the opinion:

[W]e presume that the legislature is aware of formal opinions issued by the attorney general and a failure to amend the statute in response to the formal opinion may, in appropriate circumstances, be treated as a form of legislative acquiescence in that interpretation. The weight of this factor increases over time and decreases where the opinion is

7 Citizens Alliance for Property Rights Legal Fund v. San Juan County, No. 90500-2

inconsistent with previous formal op1n1ons, administrative interpretations, or court opinions .... [W]here the opinion is issued in close temporal proximity to the passage of the statute in question, it may shed light on the intent of the legislature, keeping in mind, of course, that the attorney general is a member of a separate branch of government.

Five Corners Family Farmers v. State, 173 Wn.2d 296, 308, 268 P.3d 892 (2011)

(citations omitted). Here, the AGO issued its opinion construing "committee thereof"

and "acts on behalf of" shortly after those terms were added to the definition of

"governing body" and the legislature has not amended or clarified the statutory

definitions in the three decades since the opinion was issued. Because of these

factors and because we find the 1986 AGO opinion persuasive in its reasoning, we

adopt the interpretations as set forth in that opinion. See 1986 Att'y Gen. Op. No.

16.

The parties also dispute the meaning of "meeting" as applied to the County

Council. This dispute focuses on two issues: whether a "meeting" of a governing

body requires that a majority of the governing body be present and under what

circumstances a serialized sequence of phone calls and e-mails can constitute a

"meeting" under the OPMA.

We examine and construe each of the disputed terms in turn.

A. ((Committee thereof'

A committee of a governing body may itself be a governing body if it is a

"committee thereof." The 1986 AGO opinion reasoned that the word "thereof"

referred to any committee that the governing body creates:

The term "thereof" is defined as: "1: of that: of it ... 2: from that cause: from that particular: Therefrom ... " Webster's Third New

8 Citizens Alliance for Property Rights Legal Fund v. San Juan County, No. 90500-2

International Dictionary 2372 (1971 ). There are two definitions of the word "thereof." The first definition would seem to limit the composition of committees to members of the governing body. However, the second definition includes any committee the governing body brings into being.

We find nothing in the language of the Act or its legislative history to indicate that the Legislature intended the more restrictive first definition. Also, the policy of the Act and the legislative declaration that the statute be liberally construed support our application of the broader definition of the word "thereof."

1986 Op. Att'y Gen. No. 16, at 6-7 (emphasis added) (alterations in original).

We agree. Consequently, the key to assessing whether an entity is a

"committee thereof' with respect to a particular governing body is not whether the _

entity's members are members of the governing body but, rather, whether the entity

was "created by [the] governing body pursuant to its executive authority .... "/d. at

5. Thus, a committee may be composed "solely of a minority of the members of the

governing body" and even "of nonmembers of the governing body" as long as the

governing body created the committee. /d. at 6. 1

B. "Acts on behalf of"

The OPMA applies to committees only under certain circumstances-

specifically, "when the committee acts on behalf of the governing body, conducts

hearings, or takes testimony or public comment." RCW 42.30.020(2). We focus on

the meaning of the phrase "acts on behalf of" because CAPR has not alleged that

1 The 1986 AGO opinion does not address the issue of whether a group can be a "committee thereof" with respect to a governing body if the group consists entirely or mostly of a governing body's members but was not created or authorized by the governing body as a whole. We need not reach that question in this case because the record shows that the participants in CAO team meetings consisted primarily of nonmembers of the Council.

9 Citizens Alliance for Property Rights Legal Fund v. San Juan County, No. 90500-2

the CAO Team engaged in any of the other three enumerated activities. Here, we

agree with the 1986 AGO opinion that "acts on behalf of" refers to situations where

a committee exercises actual or de facto decision-making authority for a governing

body. This construction is supported by two fundamental principles of statutory

construction: the use of different terms in a statute suggests a different meaning for

each term and all language in a statute must be given effect.

"When the legislature uses two different terms in the same statute, courts

presume the legislature intends the terms to have different meanings." Densley v. Dep't of Ret. Sys., 162 Wn.2d 210, 219, 173 P.3d 885 (2007). Here, the legislature

used different words to describe when committees are subject to the OPMA (when

the committee "acts on behalf of the governing body") than when it specified that

meetings are subject to the OPMA (when "action is taken" at the meeting). RCW

42.30.020(2), (4). While the OPMA defines "action" quite broadly, see RCW

42.30.020(3), the use of different words in the definition of "governing body"

· suggests that the legislature intended the phrase "acts on behalf of" to carry a

narrower meaning.

Moreover, '"[s]tatutes must be interpreted and construed so that all the

language used is given effect, with no portion rendered meaningless or

superfluous."' G-P Gypsum Corp. v. Dep't of Revenue, 169 Wn.2d 304, 309, 237

P.3d 256 (201 0) (internal quotation marks omitted) (quoting State v. J.P, 149 Wn.2d

444, 450, 69 P.3d 318 (2003)). Here, construing "acts on behalf of" as covering all

deliberations of a committee would render the remainder of the definition

superfluous. As the AGO explained:

10 Citizens Alliance for Property Rights Legal Fund v. San Juan County, No. 90500-2

If the Legislature intended a broad interpretation of the phrase "acts on behalf of," it simply would have added the words "or any committee thereof" to the definition of "governing body." Had the Legislature done so, a committee would have been subject to the Act on the same basis as the governing body itself-whenever it conducts a meeting at which action is taken.

However, the Legislature also added the phrase "when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment." These words would be rendered meaningless if a committee is required to comply with the Act when it holds a meeting where action is taken. Under this language a committee of a governing body is required to comply with the Act only "when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment."

We also note that the Legislature selected the word "acts" instead of the word "action," which is broadly defined in RCW 42.30.020(3). If the Legislature intended the phrase "acts on behalf of" to be broadly construed we believe it would have used the word "action."

1986 Op. Att'y Gen. No. 16, at 9.

As the 1986 AGO opinion acknowledged, while this statutory context strongly

suggests that the legislature intended a narrow meaning of "acts on behalf of," the

term could also reasonably be construed more broadly as referring to all instances

when the committee "performs a specified function in the interest of the governing

body." /d. at 7. To the extent that a term in a statute is susceptible to more than one

reasonable meaning, we may consider the statute's legislative history. Campbell &

Gwinn, 146 Wn.2d at 12. In this case, however, the legislative history behind the

statute leads to the same conclusion: the phrase "acts on behalf of" does not extend

to the work of purely advisory bodies.

An early version of the OPMA 1983 amendment would have defined

"governing body" as including "any committee thereof if the committee is authorized

11 Citizens Alliance for Property Rights Legal Fund v. San Juan County, No. 90500-2

to act on behalf of the governing body in conducting hearings, taking testimony or

public comment, or deliberating the making of policy or rules." S.B. 3206, at 1-2,

48th Leg., Reg. Sess. (Wash. 1983) (emphasis added). The above-emphasized

final phrase was stricken from the definition of a substitute bill, strongly suggesting

that the legislature did not intend to extend the OPMA "to committees that do

nothing more than deliberate the making of policy or rules." 1986 Op. Att'y Gen. No.

16, at 10. A colloquy on the House floor during the discussion of the amendment

further suggests this narrower construction of "acts on behalf of" reflects the intent

of the legislature:

"Mr. Isaacson: 'What are the requirements with respect to giving formal notice?'

"Ms. Hine: 'It's the intent of the legislation, we believe, subject to the deliberations of the governing body, that this apply only to deliberations of the governing body or subcommittees which the governing body specifically authorizes to act on its behalf, or which [sic] policy, testimony, or comments are made in its behalf. In Other Words, It's When Making Policy Or Rules, Not For General Comments Or Any Kind Of Informal Type Meeting They May Have. Those would not require the official formal notice."'

!d. at 11 (quoting 1 HousE JOURNAL, 48th Leg., Reg. Sess., at 1294 (Wash. 1983)).

Taking the plain meaning of the statute together with this legislative history, the

AGO concluded that "a committee acts on behalf of the governing body when it

exercises actual or de facto decisionmaking authority for the governing body." /d.

at 8. We agree and adopt the AGO's construction of "acts on behalf of" as set forth

in its 1986 AGO opinion. The OPMA therefore does not extend to advisory

committees and other entities that do nothing more than conduct internal

discussions and provide advice or information to the governing body.

12 Citizens Alliance for Property Rights Legal Fund v: San Juan County, No. 90500-2

C. "Meeting"

OPMA also specifies when meetings are subject to the OPMA-when "action

is taken" at a meeting. RCW 42.30.020(4). Our case law also establishes that the

OPMA applies only to meetings where a majority of the governing body is present.

In re Recall of Beasley, 128 Wn.2d 419, 427, 908 P.2d 878 (1996) (citing In re

Recall of Roberts, 115 Wn.2d 551, 554, 799 P.2d 734 (1990)); Wood v. Battle

Ground Sch. Dist., 107 Wn. App. 550, 564, 27 P.3d 1208 (2001). Gatherings that

do not include a majority of the governing body's members are not considered

meetings for the purposes of the OPMA.

Unfortunately, the OPMA does not actually define what a "meeting" itself is,

and neither this court nor the AGO has construed "meeting" in an opinion. To

construe this term, we start by examining its plain and ordinary meaning. State v.

Kintz, 169 Wn.2d 537, 547, 238 P.3d 470 (2010). While we typically ascertain plain

meaning from standard English dictionaries, it is helpful to examine legal

dictionaries when words are used in a legal context. Lynott v. Nat'! Union Fire Ins.

Co. of Pittsburgh, 123 Wn.2d 678, 691-92, 871 P.2d 146 (1994 ). Here, Black's Law

Dictionary provides a useful definition of "meeting" in the context of legislative and

deliberative bodies:

meeting, n. (14c) Parliamentary law. A single official gathering of people to discuss or act on matters in which they have a common interest; esp., the convening of a deliberative assembly to transact business. • A deliberative assembly's meeting begins with a call to order and continues (aside from recesses) until the assembly adjourns.

BLACK'S LAW DICTIONARY 1131 (10th ed. 2014).

13 Citizens Alliance for Property Rights Legal Fund v. San Juan County, No. 90500-2

For a gathering to be considered a "meeting," then, the purpose of the

gathering must be "to discuss or act on matters in which" the attendees "have a

common interest." /d. It follows that for a gathering of a governing body's members

to be considered a "meeting" of the governing body itself, the "common interest"

must relate to the official business of the governing body. Consequently, and as our

courts have held, members of a governing body "must collectively intend to meet

to transact the governing body's official business" for their communications to

constitute a meeting. Wood, 107 Wn. App. at 565 (emphasis added) (citing 1971

Op. Att'y Gen. No. 33, at 19). As the Court of Appeals correctly held, the passive

receipt of e-mails and other one-way forms of communication does not, by itself,

amount to participation in a meeting because such passive receipt of information

does not demonstrate the necessary intent to meet. See Citizens All., 181 Wn. App.

at 545 (citing Wood, 107 Wn. App. at 564). If communications do not reflect the

requisite collective intent to meet, no "meeting" has occurred and the OPMA does

not apply.

Thus, within the context of the OPMA, we adopt the following definitions: (1)

a "meeting" of a governing body occurs when a majority of its members gathers

with the collective intent of transacting the governing body's business, (2) a

"committee thereof" with respect to a given governing body is an entity that the

governing body created or specifically authorized, and (3) a committee "acts on

behalf of" a governing body when the committee exercises actual or de facto

decision-making authority on behalf of the governing body. Thus, to establish that

the CAO Team violated the OPMA, CAPR must establish that an issue of fact exists

14 Citizens Alliance for Property Rights Legal Fund v. San Juan County, No. 90500-2

regarding whether (A) a majority of council members participated in a CAO team

meeting with the collective intent of transacting the Council's business, or (B) the

CAO Team was created by the Council and (C) that it exercised decision-making

authority on behalf of the Council. 2

II. The CAO team meetings were not subject to the OPMA

Here, the CAO team meetings did not violate the OPMA because (A) none

of the CAO team meetings included a majority of council members, (B) the team

was not a "committee" of the Council, and (C) the team did not "act on behalf of"

the Council.

A. No majority of the Council

CAPR argues that the CAO team meetings constituted meetings of the

Council itself because they included a "quorum" of the Council's members. In

support of this argument, CAPR asserts that the OPMA applies to meetings in which

a "'negative quorum'" of the Council's members participate-i.e., a number of

Council members sufficient to block legislation being considered by the Council,

even if that number is not sufficient to enact legislation. Am. Pet. for Review at 8.

CAPR further alleges that one series of e-mails and telephone conversations

constituted a "meeting" of the Council that included an actual majority of the

2 CAPR attempts to argue that these requirements are disjunctive-i.e., that a committee is a "governing body" under the OPMA if it was created by the council or if it acted on behalf of the council. But the "committee thereof" and "acts on behalf of" requirements are clearly separate under the plain language of the statute, which makes a "committee thereof" subject to the OPMA only "when the committee acts on behalf of the governing body .... " RCW 42.30.020(2) (emphasis added). An entity thus must meet both requirements to be subject to the OPMA.

15 Citizens Alliance for Property Rights Legal Fund v. San Juan County, No. 90500-2

Council's members. We reject the former argument because it runs contrary to our

· long-standing precedent requiring the presence of a majority of a governing body's

members for a gathering to trigger the requirements of the OPMA. We also reject

the latter argument because the record does not indicate that a majority of council

members had a collective intent to meet during the e-mail and telephone exchange

that CAPR cites.

The Council had six members during the relevant period. The CAO Team

initially included two members of the Council (Fralick and Pratt), and a third member

(Miller) began attending the meetings later. While formal attendance records do not

appear to have been kept for the team's meetings, we assume arguendo that all

three of these council members attended all CAO team meetings that occurred after

Miller joined the Council. Under Washington Law, the OPMA applies to a gathering

of a governing body's members only if a majority of members are present. See In

re Recall of Beasley, 128 Wn.2d at 427. Applying this standard, the CAO team

meetings did not trigger the OPMA because three members of the Council is one

less than a majority.

CAPR argues, however, that we should depart from this precedent and hold

that the presence of a "negative quorum" of a governing body's members suffices

to trigger the OPMA. A negative quorum refers to the situation where the number

of members present would be sufficient to block the passage of legislation. CAPR

16 Citizens Alliance for Property Rights Legal Fund v. San Juan. County, No. 90500-2

cites no Washington case that utilizes the negative quorum principle, instead relying

on a single out-of-state opinion published nearly three decades ago. 3

We see no reason to depart from our long-standing rule requiring the

presence of a simple majority of a governing body's members-a rule that provides

clear guidance to public agencies regarding the application of the OPMA. It is easy

to determine whether a majority of a governing body's members are present at a

meeting. On the other hand, it might be difficult to apply a "negative quorum" rule

because different measures being discussed by a governing body might require the

approval of different numbers of members (e.g., some measures might require a

simple majority and others a two-thirds supermajority) for passage. 4 We decline to

overturn our prior precedent and instead reaffirm that the OPMA applies to

meetings of a governing body when a majority of the governing body's members

are present.

CAPR does not dispute that all of the CAO Team's in-person meetings

included at most three members of the Council. Consequently, none of the in-

person CAO team meetings constituted a meeting of the Council itself for the

purposes of the OPMA. But CAPR asserts that a serialized e-mail and telephone

exchange involving members of the Council constituted a "meeting" of the Council

3 See State ex ref. Newspapers Inc. v. Showers, 135 Wis. 2d 77, 80, 398 N.W.2d 154 ( 1987) (Wisconsin open meeting law applied to a gathering of 4 members of an 11-member body to discuss a budget measure that required a two-thirds supermajority to pass). 4 In fact, if a measure required unanimous approval for passage, then the presence of a single member of the governing body would technically constitute a negative quorum with respect to that measure.

17 Citizens Alliance for Property Rights Legal Fund v. San Juan County, No. 90500-2

because four council members were "present" during the communications. See

Sup pl. Br. of Appellant at 7-8. The communications that CAPR describes as a

"meeting" consisted of two e-mails and a telephone call that occurred over the

course of a 14-hour period. Council member Peterson, who did not attend any of

the CAO Team's in~person meetings, sent the first e-mail on which CAPR relies;

the recipients were Fralick and Miller, who were on the CAO Team. Fralick

responded to Peterson later the same day, copying Miller. In his e-mail, Fralick

alluded to a telephone call between himself and Pratt (another CAO team member)

that apparently had occurred earlier in the same day. Both thee-mails and Fralick's

summary of the telephone call reference the CAO update.

These communications did not constitute a meeting of the Council because

they contain no indication that the participants had the requisite collective intent to

meet. See Wood, 107 Wn. App. at 565 ("the participants must collectively intend to

meet to transact the governing body's official business" for the OPMA to apply

(citing 1971 Op. Att'y Gen. No. 33)). The text of the e-mails do not indicate that

Miller or Peterson were aware of Fralick's call to Pratt before Fralick sent his e-mail

summarizing it; certainly, the e-mails do not suggest that Miller or Peterson actually

intended for a telephone call to Pratt to be part of an otherwise e-mail-based

"meeting" of the Council. Likewise, there is no indication that Pratt was aware of

the e-mails sent by Peterson or Fralick. Consequently, the communications cited

by CAPR do not evidence a collective intent for the four council members to meet

to transact council business.

18 Citizens Alliance for Property Rights Legal Fund v. San Juan County, No. 90500-2

Moreover, the record does not contain any e-mails sent by Miller in this

exchange, nor does it reference any telephone calls in which Miller participated.

Instead, Miller passively received one e-mail each from Fralick and Peterson.

Because passive receipt of e-mail does not constitute participation in a meeting,

Wood, 107 Wn. App. at 564, Miller could not have been part of the ostensible

"meeting" for OPMA purposes. Without Miller, the communications at issue involve

only three council members-the same number that participated on the CAO Team

and less than a majority of the full Council. For these reasons, the e-mail/telephone

exchange did not constitute a "meeting" of the Council. 5

Because CAPR cites to no meetings or communications of the CAO Team

involving more than three council members and because we reject CAPR's

"negative quorum" argument, CAPR has failed to establish that the CAO team

meetings constituted meetings of the Council.

B. Not a committee of the Council and no action on behalf of the Council

The fact that CAO team meetings were not meetings of the Council itself

does not end the Ofl>MA inquiry because the OPMA also applies to committees and

subcommittees of legislative bodies under certain circumstances:

(2) "Governing body" means the multimember ... council, or other policy or rule-making body of a public agency, or any committee thereof when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment.

s We do not reach the issue of whether such a serialized sequence of communications can ever constitute a "meeting" under OPMA.

19 Citizens Alliance for Property Rights Legal Fund v. San Juan County, No. 90500-2

RCW 42.30.020 (emphasis added). Here, CAPR has not alleged that the CAO

Team conducted hearings or took testimony or public comment. Thus, for the CAO

Team to be subject to the OPMA, it must satisfy two conditions: (1) it must be a

"committee thereof" with respect to the Council and (2) it must have "acted on

behalf" of the Council.

The CAO Team does not meet either of these requirements. CAPR failed to

create an issue of fact whether the team was a committee of the Council because

CAPR failed to offer any evidence that the Council authorized the creation of the

CAO Team. Moreover, the CAO Team never "acted on behalf of" the Council

because the record contains no indication that the CAO Team exercised actual or

de facto decision-making power. Rather, all evidence adduced by CAPR suggests

that the CAO Team's role with respect to the Council was, at most, that of staff

support.

1. The CAO Team was not a "committee thereof" with respect to the Council

We apply the 1986 AGO opinion's construction of "committee thereof," under

which the CAO Team can be considered a committee of the Council only if the

Council somehow acted to bring the CAO Team into being. 1986 Op. Att'y Gen. No.

16, at 7. None of the voluminous documents that CAPR obtained during discovery

and cited in its court filings suggest that the Council took any such action. All six

individuals who were members of the Council during the CAO update process filed

declarations before the trial court stating individually that they took no action as a

council member to bring the CAO Team into being, never intended to bring it into

being, never authorized the CAO Team to act for the Council, and never intended

20 Citizens Alliance for Property Rights Legal Fund v. San Juan County, No. 90500-2

for the CAO Team to act for the Council. CAPR failed to adduce any evidence

disputing these unequivocal statements that the Council did not create the CAO

Team, 6 nor have they cited to any documents in the record suggesting that the

Council later ratified the CAO Team's formation.

The concurrence/dissent argues that the CAO Team was created by the

Council because "[i]t was the Council, not the county administrator, that determined

it needed an updated participation plan in order to fulfill its mandatory duty to update

its critical areas ordinance using best available science." Concurrence/Dissent at

6. This is a non sequitur. When a governing body directs its staff to develop a plan

of action and the staff creates a committee to develop the plan, the staff, not the

governing body, has created the committee. That is the nature of organizations: the

governing body decides on policy and orders the staff to implement the policy, and

the staff complies. If the concurrence/dissent's theory were correct, every staff

department would be a committee of the governing agency and would be subject

to the OPMA. This cannot have been the intent of the act.

For these reasons, the CAO Team was not a "committee thereof" with

respect to the Council. 7

6 In its response to the summary judgment motion, CAPR cited to a single deposition statement by another county employee who was a member of the CAO Team opining that the Council "would have created" the CAO Team. The trial court correctly struck this statement as speculation because the deposition did not suggest that the employee had any personal knowledge of how the CAO Team was created; CAPR did not challenge this decision in its petition for review or supplemental brief.

7 On appeal, CAPR has argued that meetings of other council subcommittees-specifically governance, budget, and solid waste subcommittees-also held closed meetings in violation of OPMA. See Am. Pet. for Review at 4-5. The Court of Appeals rejected CAPR's

21 Citizens Alliance for Property Rights Legal Fund v. San Juan County, No. 90500-2

2. The CAO Team did not "act on behalf of" the Council

Even if we were to conclude that the CAO Team was a "committee" of the

Council, CAPR's claim would fail because the CAO Team did not act on behalf of

the Council. Applying the 1986 AGO opinion's definition, CAPR must demonstrate

that the CAO Team exercised actual or de facto decision-making authority for the

Council to establish that the team acted "on behalf of" the Council. See 1986 Att'y

Gen. Op. No. 16, at 8. The record contains no indication that the CAO Team ever

exercised such authority.

The record demonstrates that the CAO Team's role with respect to the

Council was, at most, that of staff or an advisory board. The CAO Team appears to

have spent much of its time discussing procedural and logistical issues such as the

timeline for completing the update, the formatting of reports, the scheduling of

public comment sessions, and gathering information from outside consultants and

experts. Other topics discussed included public messaging and anticipating and

responding to potential objections to the update. To the extent that the team

addressed the substance of the CAO update, nothing in the record indicates that

they did anything more than gather information, conduct internal discussions, and

provide information to the Council. As the 1986 AGO opinion suggests and as the

argument with respect to these other subcommittees, noting that while "CAPR made some passing references to the other subcommittees in its amended complaint and response to the County's motion for summary judgment[, it] did not name those subcommittees as defendants, include them in its claim for relief, or provide evidence and argument in support of its assertion that they violated OPMA." Citizens All., 181 Wn. App. at 542 n.4. We agree and therefore do not consider CAPR's arguments concerning other subcommittees.

22 Citizens Alliance for Property Rights Legal Fund v. San Juan County, No. 90500-2

Court of Appeals held, none of these activities amount to the exercise of actual or

de facto decision-making authority. Rather, they are consistent with the role of an

informal advisory committee or administrative staff support. See id. at 11-12;

Citizens All., 181 Wn. App. at 551-52.

The concurrence/dissent selectively seizes on part of a definition of the word

"act" or "acts" from 1986 AGO opinion, using "exert[s] power or influence or

produce[s] an effect" to define "acts." Concurrence/dissent at 8. But this ignores

the AGO's express qualification that the committee must be acting "on behalf" of

the governing body: "Under this construction, a committee acts on behalf of the

governing body when its exercises actual or de facto decisionmaking authority for

the governing body." 1986 Op. Att'y Gen. No. 16, at 5.

The concurrence/dissent seems to conclude that a committee might be

subject to the OPMA if the committee exerts power or influence, concluding that the

CAO Team might have exercised power or influence because "it played a key role

in formulating the best available science synthesis adopted by the Council."

Concurrence/Dissent at 9. This theory is internally inconsistent, as the CAO Team

could not have been acting on behalf of the Council by making a recommendation

to the Council itself; particularly where the Council, not the CAO Team, was

deciding what would constitute the best available science.

The concurrence/dissent's focus on the exercise of power and producing an

effect results in a vague definition of when a committee acts on behalf of the

governing body, which the concurrence/dissent characterizes as "nuanced." /d. at

7. As a result, three years after the CAO Team completed its work, after

23 Citizens Alliance for Property Rights Legal Fund v. San Juan County, No. 90500-2

proceedings in three levels of court, and despite a summary judgment record

exceeding 1,000 pages, the concurrence/dissent concludes that we still do not

know if the CAO Team acted "on behalf" of the Council. This lack of clarity places

government units in the untenable position of not knowing until long after the fact

whether any committee is subject to the OPMA. State and local governments need

a clear definition, not a nuanced definition. We adhere to the clear and workable

definition that a committee acts on behalf of a governing body only when the

committee exercises actual or de facto decision-making authority for a governing

body.

Consequently, the CAO Team did not act on behalf of the Council. The team's

meetings therefore cannot constitute meetings of a "governing body" under RCW

42.30.020(2).

Ill. Attorney fees

CAPR asserts that it would be entitled to reasonable attorney fees and costs

under the OPMA if we reverse the Court of Appeals and hold that the County

violated the OPMA. Because we affirm and hold that no the OPMA violation

occurred, we deny CAPR's request for attorney fees.

CONCLUSION

For these reasons, we affirm.

24 Citizens Alliance for Property Rights Legal Fund v. San Juan County, No. 90500-2

WE CONCUR.

25 Citizens All. for Prop. Rights Legal Fund v. San Juan County, et al., No. 90500-2 Yu, J. (concurring in part and dissenting in part)

No. 90500-2 YU, J. (concurring in part and dissenting in part)-"All political power is

inherent in the people, and governments derive their just powers from the consent

of the governed." CONST. art. I, § 1. In order to give meaning and substance to

this consent, the Open Public Meetings Act of 1971 (OPMA) helps to ensure that

the people "may retain control over the instruments they have created." RCW

42.30.010. I agree with the majority that the attorney general has provided highly

persuasive guidance for interpreting the OPMA. Given the context and nuances of

this guidance, however, I cannot agree with all of the majority's conclusions. I

would hold that the Citizens Alliance for Property Rights Legal Fund (CAPR) has

shown, as a matter of law, that the critical areas ordinance team (CAO Team) was

a committee of the San Juan County Council (Council) and that CAPR has

produced sufficient evidence to create a genuine issue of material fact as to Citizens All. for Prop. Rights Legal Fund v. San Juan County, et al., No. 90500-2 Yu, J. (concurring in part and dissenting in part)

whether and when the CAO Team acted on the Council's behalf. I therefore

respectfully dissent in part. 1

It is undisputed the CAO Team held meetings that would have violated the

OPMA, if the OPMA applied. I agree with the majority that the OPMA applied to

those meetings only ifthe CAO Team was a committee of the Council and only

when it acted on the Council's behalf. See majority at 15 & n.2. However, I would

hold CAPR has produced sufficient evidence to survive summary judgment

because the CAO Team was a committee of the Council as a matter of law and

there is a genuine issue of fact as to whether it acted on the Council's behalf.

A. The CAO Team was a committee ofthe Council

The OPMA applies to governing bodies of public agencies, such as the

Council, and to "any committee thereof." RCW 42.30.020(2). The CAO Team

was certainly a "committee"-'" a body of persons delegated to consider,

investigate, or take action upon and usu. to report concerning some matter of

business."' 1986 Op. Att'y Gen. No. 16, at 6 (quoting WEBSTER'S THIRD NEW

INTERNATIONAL DICTIONARY 458 (1971)). The question is what the CAO Team

1 I agree that CAPR has not produced sufficient evidence to survive summary judgment on the question of whether the Council as a whole violated the OPMA. I also agree that we should not consider its arguments regarding any committees other than the CAO Team. Finally, I agree with the necessarily implied conclusion that, even if the CAO Team did violate the OPMA, the ordinances at issue in this case are not void under RCW 42.30.060(1). I therefore concur in part.

2 Citizens All. for Prop. Rights Legal Fund v. San Juan County, et al., No. 90500-2 Yu, J. (concurring in part and dissenting in part)

was a committee of, and based on the facts presented, I would hold that it was a

committee of the Council.

In 1986, the attorney general issued a formal opinion determining that a

committee of a governing body could include "committees composed of

nonmembers of the governing body when appointed by the governing body." Jd. at

2. The OPMA's coverage "includes any committee the governing body brings into

being" because in this context, "thereof' is broadly defined as '"from that cause:

from that particular."' I d. at 6-7 (quoting WEBSTER's, supra, at 2372). This

coverage is not limited to committees brought into being "though a formal legal

instrument such as a legislative resolution or an executive directive." Majority at

2-3. Quite the contrary.

In fact, the OPMA was amended to fill a "gap in the coverage" for

"committees, subcommittees, and other groups that were not created by or pursuant

to statute, ordinance, or other legislative act." 1986 Op. Att'y Gen. No. 16, at 4.

Holding that the OPMA does not apply to committees unless they are created by a

formal legal instrument reopens a statutory gap that has been closed for nearly 30

years. "'The unavoidable fact is that each new arrangement must be examined

anew and in its own context."' 1991 Op. Att'y Gen. No.5, at 5 (quoting Pub.

Citizen Health Research Grp. v. Dep'tofHealth, Educ. & Welfare, 215 U.S. App.

D.C. 191, 668 F.2d 537, 542 (1981)). As eloquently stated in an informal opinion

3 Citizens All. for Prop. Rights Legal Fund v. San Juan County, eta!., No. 90500-2 Yu, J. (concurring in part and dissenting in part)

by the attorney general's open government ombudsman, "Whether the committee

was created directly or indirectly by the [governing body] is of less relevance than

how it functions as a committee." Clerk's Papers (CP) at 695; cf Worthington v.

WestNET, 182 Wn.2d 500, 507-08, 341 P.3d 995 (2015) (endorsing a functional

approach to analyzing when an entity is a public agency subject to the Public

Records Act, chapter 42.56 RCW). There is certainly nothing in the record to

show that the Council specifically created the CAO Team with a formal legal

instrument, but the relevant inquiry is the context in which the CAO Team was

created and not merely the formalities of how it was done. Nothing about the

OPMA endorses the view that informality is an adequate substitute for open

government.

The record indicates that the specific idea to form a CAO Team came from

the county administrator, CP at 254, 761-69, and the CAO Team was originally

brought together by a joint effort of its members, which included members of the

Council as well as other individuals, SAN JUAN COUNTY RESOLUTION (SJCR) 26-

2010, at 3 (June 29, 2010). 2 Those actions, by themselves, probably would not

make the CAO Team a committee of the Council. Generally speaking, a group

may come together on its own initiative to discuss ideas and formulate suggested

2 The county has acknowledged that we may take judicial notice of this resolution, as well as SJCR 12-2010 (Feb. 16, 2010) and SJCR 32-2011 (Aug. 9, 2011). See Resp't's Answer to Mot. to Augment R. after Oral Arg. at 3-4.

4 Citizens All. for Prop. Rights Legal Fund v. San Juan County, et al., No. 90500-2 Yu, J. (concurring in part and dissenting in part)

approaches to govermnent policy without being a committee of that government.

But that is not all that happened here.

The CAO Team was formed because the Council had already tried and

failed twice to update the county's critical areas ordinance. See, e.g., CP at 254-

55, 290, 320, 384. By statute, this update was mandatory and required "the best

available science in developing policies and development regulations to protect the

functions and values of critical areas." SCJR 12-2010, at 1 (Feb. 16, 2010) (citing

RCW 36.70A.130, .172). A problem arose in the Council's prior update attempts

when "the San Juan County Planners and a citizens advisory committee" used

incomplete reports "to prepare a draft critical areas ordinance before the best

available science was approved by the County Council." !d.

Based on this prior experience, the Council determined in February 2010

that it needed to "revise its process for consideration of best available science in

the adoption of its critical areas regulations." !d. The Council directed the

planning department to draft "a revised public participation plan with a schedule

for the review, and if necessary, revision of' the critical areas ordinance. !d. at 2.

The Council provided specific directions about what the public participation plan

should look like: "The first step of the public participation process will be to

identify the best available science that will be relied upon," which should include

opportunities for submissions and comments by the public. !d.

5 Citizens All. for Prop. Rights Legal Fund v. San Juan County, et al., No. 90500-2 Yu, J. (concurring in part and dissenting in part)

Approximately four months after the Council determined it needed a revised

participation plan, it formally adopted one. The first step of that plan reads,

"Establish CAO Update Implementation Team." SJCR 26-2010, at 3 (boldface

omitted). The CAO Team was designated as solely responsible for

"[ d]etermin[ing] content and format of science syntheses, evaluation of

reg[ulations] and recommendations." !d. at 5. In August 2011, the Council passed

a resolution updating and replacing the earlier plan. The first task was listed as

"Establish [critical areas ordinance/shoreline master program] Update

Implementation Team." SJCR 32-2011, Ex. A at 1. The CAO Team was

designated as the party solely responsible for having completed the task of

"[d]etermin[ing] content and format of science syntheses." !d. at 3.

This context cannot be ignored. It was the Council, not the county

administrator, that determined it needed an updated participation plan in order to

fulfill its mandatory duty to update its critical areas ordinance using best available

science. The Council passed a formal resolution ratifying the CAO Team's role in

that plan. Unlike an outside group, such as a citizens' committee, the CAO Team

was not merely given an opportunity to provide input-it was delegated specific,

essential tasks, without which the Council "wouldn't have made any progress."

CP at 230. Its task was not merely to develop a plan for synthesizing best available

science but to actually formulate that synthesis, which required discarding specific

6 Citizens All. for Prop. Rights Legal Fund v. San Juan County, et al., No. 90500-2 Yu, J. (concurring in part and dissenting in part)

approaches. And unlike many other parties with designated roles in the

participation plan (for example, the Department of Commerce and the county

prosecuting attorney), the CAO Team did not exist before or after the Council's

ordinance update process. The Council is the entity that brought the CAO Team

into being, and the CAO Team was therefore a committee of the Council.

B. There is a genuine issue of material fact as to whether the CAO Team acted on the Council's behalf

I agree with the majority that just because an entity is a committee of a

governing body does not mean all its meetings are subject to the OPMA. As

applied to this case, the OPMA applies only when the committee "acts on behalf of

the governing body." RCW 42.30.020(2). Contrary to the majority's summary

conclusions, I believe there is a genuine issue of fact as to whether the CAO Team

did so.

1. The attorney general's guidance must be read in context

The attorney general determined that "a committee acts on behalf of the

governing body when its exercises actual or de facto decisionmaking authority for

the governing body." 1986 Op. Att'y Gen. No. 16, at 8. This guidance is both

persuasive and relevant, but it is also more nuanced than that single phrase

conveys.

"[A] committee might act on behalf of the governing body only when it

exerts power or influence or produces an effect as the representative of the

7 Citizens All. for Prop. Rights Legal Fund v. San Juan County, et al., No. 90500-2 Yu, J. (concurring in part and dissenting in part)

governing body." !d. at 7. To exert power or influence or produce an effect as the

governing body's representative, a committee must do more than merely discuss an

issue. As the attorney general has noted, if that were sufficient, committee

meetings would be subject to the OPMA to the same extent as meetings of the

governing body. !d. at 9. On the evidence presented, many of the CAO Team's

activities probably did not rise to the level of acting on behalf of the Council under

the definition adopted by the attorney general.

However, a committee's activities certainly do not need not take the form of

"final action" as defined in RCW 42.30.020(3) ("[A] collective positive or negative

decision, or an actual vote by a majority of the members of a governing body when

sitting as a body or entity, upon a motion, proposal, resolution, order, or

ordinance."). If that were necessary, the committee would have to usurp the final

decision-making authority of the governing body before the OPMA could apply.

Such an interpretation is easy to apply in practice but is irreconcilable with the

OPMA's broad statement of legislative purpose:

The legislature finds and declares that all ... councils, committees, subcommittees, ... and all other public agencies of this state and subdivisions thereof exist to aid in the conduct of the people's business. It is the intent of this chapter that their actions be taken openly and that their deliberations be conducted openly.

RCW 42.30.010.

8 Citizens All. for Prop. Rights Legal Fund v. San Juan County, et al., No. 90500-2 Yu, J. (concurring in part and dissenting in part)

The attorney general's full definition captures the appropriate middle ground

on which we should analyze whether and when the CAO Team acted on behalf of

the Council-whenever it "exert[ed] power or influence or produce[ d] an effect as

the representative ofthe governing body." 1986 Op. Att'y Gen. 16, at 8. I would

hold that the evidence presented indicates that at least some of the CAO Team's

activities might have met this definition.

2. There is a genuine issue of material fact about whether the CAO Team acted on behalf of the Council

Our ability to evaluate what the CAO Team did at any particular meeting is

hampered by the fact that its meetings were not recorded or transcribed and that

CAO team members generally stated they did not recall the specific events of any . particular meeting or the specific discussions held on any particular topic. 3 E.g.,

CP at 258, 267, 367, 385-86. This lack of documentation and institutional amnesia

only emphasizes the importance of public oversight under the OPMA.

Nevertheless, there is sufficient evidence to create a genuine issue of material fact.

We know the CAO Team met over 20 times, and we know it played a key role in

formulating the best available science synthesis adopted by the Council. The full

extent and influence of this role is a question of fact.

3 Whether these assertions are credible is, of course, a question for the finder of fact.

9 Citizens All. for Prop. Rights Legal Fund v. San Juan County, eta!., No. 90500-2 Yu, J. (concurring in part and dissenting in part)

While official documents relevant to this question are scarce, some are

illuminating. The Council's own resolutions designate the CAO Team as solely

responsible for"[ d]etermin[ing] content and format of science syntheses." SJCR

26-2010, at 5; SJCR 32-2011, Ex. A at 3. Determining the format of science

syntheses is unlikely to exert power or influence or create any substantive effect on

the Council's behalf, but determining its content certainly would. I do not believe

that at the summary judgment stage, this can be dismissed as mere unartful

wording. The county's prosecuting attorney indicated that in council committees,

"ideas and policies are brought forward, discussed, narrowed and discarded and

approaches are formulated for making presentations of subcommittee work to the

entire Council." CP at 453. Simply bringing forth and discussing ideas and

policies is not acting on the Council's behalf, but narrowing and discarding them

might be.

Indeed, members of the Council indicated that this narrowing and discarding

process might include deciding how much of the information underlying its

recommendations, if any, should be provided to the full Council or to the public.

For instance, the Council held a special public meeting on January 31, 2012 to

discuss "issues associated with the role of subcommittees." I d. at 228. Many

statements by the council members themselves indicate that neither the Council nor

the public was given access to the information underlying committee

10 Citizens All. for Prop. Rights Legal Fund v. San Juan County, et al., No. 90500-2 Yu, J. (concurring in part and dissenting in part)

recommendations or even provided with a summary of the committee's discussions

in reaching its recommendations. One council member stated that there was a

"challenge" presented by the fact that "like the public, those council members who

aren't on the subcommittee aren't privy to all of the information and all of the

discussion that went into the formation of a recommendation." Id. at 229. Later in

the same meeting, a council member who was speaking from the perspective of

someone "[h]aving only dealt with this system for a year" raised the CAO Team as

an example of a "subcommittee" whose members "would have more knowledge

than the rest of the council." 4 Id. at 230. A third council member freely

acknowledged that committee members might tell the rest of the Council they have

nothing to report from committee, not because nothing happened but

because I was there and lived it, but am I being fair to the rest of the council by not providing some of the background of the nature of the dialogue? ... We can't sit down and have the whole conversation with you that we had in the subcommittee, but I don't see any reason why the documents couldn't be made more readily available so you have them and you have a chance to digest them.

4 0ther council members who were part of the CAO Team quickly jumped in to make it clear they did not view the CAO Team as a subcommittee "because it actually has staff and other people involved," CP at 230, but the attorney general's 1986 opinion makes it clear that an entity's membership is not determinative of whether it is a committee of a governing body. This candid statement from a council member looking at the CAO Team from an outside perspective is telling as to the actual function of the CAO Team relative to the Council as a whole.

11 Citizens All. for Prop. Rights Legal Fund v. San Juan County, et al., No. 90500-2 Yu, J. (concurring in part and dissenting in part)

Id. at 232. And a fourth member noted that when the full Council was "in an

agenda crunch," reports from subcommittees "are usually one of the things that

goes first" and are most likely to be treated "as throwaways." Id. at 232.

Unofficial records created by CAO team members further indicate that the

CAO Team considered more information than it provided to the Council or the

public in the process of crafting the best available science synthesis. Particularly

in light of the central importance of best available science to the Council's

mandatory duty to update its critical areas ordinance, this issue warrants careful

scrutiny. Using the best available science is not simply good policy; it must be

considered "in developing policies and development regulations to protect the

functions and values of critical areas." SJCR 12-2010 at 1.

One of the CAO Team's duties regarding the best available science synthesis

was "identifying for the County Council its view of what policy decisions had to

be made by the County Council." CP at 445. This provided a "starting point" for

determining what issues the Council should even look at. Id. at 446. It should go

without saying that identifying the issues that must be decided is very likely to

produce an effect on the decisions that are made. Particularly in light of the fact

that the majority of the Council agreed in 2012 that its committees often did not

provide it with the information underlying its decisions, I would hold there is a

12 Citizens All. for Prop. Rights Legal Fund v. San Juan County, eta!., No. 90500-2 Yu, J. (concurring in part and dissenting in part)

genuine question of fact as to whether identifying issues rose to the level of acting

on behalf of the Council.

A member of the CAO Team who was not on the Council also indicated that

the CAO Team's duties included making suggestions for explaining the scientific

information "in a way that normal people can understand." Id. at 401. Whether

the CAO Team considered that an issue of determining the "content" of the best

available science synthesis or merely its "format," the "normal" people should be

able to see the underlying information that is being explained. It is not clear from

the record whether and to what extent they were able to access that information,

and there is a genuine issue of material fact as to the level of influence this may

have had.

It also appears there was an ongoing question about whether a scientific

expert contracted by the county was in fact providing the best available science. In

November 2011, a member of the CAO Team wrote an e-mail to the rest of the

CAO Team about this expert:

At some point soon we do need to discuss Dr. Adamus' role moving forward. While he can be quite helpful, it is a problem if he doesn't have time to attend hearings (which we have not asked him to do but which would help him understand the comments we receive), review materials, and participate in problem solving in a constructive manner. His lack of attention and input into the last wetland draft resulted in a significant waste of both our time, and the public's time.

13 Citizens All. for Prop. Rights Legal Fund v. San Juan County, eta!., No. 90500-2 Yu, J. (concurring in part and dissenting in part)

!d. at 517. Several months later, these problems had only become worse. In an e-

mail message to the rest of the CAO Team, the same team member lamented, "We

are continuing to struggle with the crafting of a site specific approach to buffers

that is understandable, workable and scientifically defensible-and the more I

work with the various versions of Dr. Adamus' approaches the more concerned I

become." Id. at 503. After listing various problems with the substance ofthe

expert's recommendations, she concluded that it was unlikely the CAO Team

would be able "to go forward with one approach we both understand and support,"

which "is an odd situation for a client and contractor." Id. at 504.

Members of the CAO Team stated they could not remember what happened

in response to this e-mail. Id. at 336-41, 414-15. However, I find it troubling that

a member of the CAO Team would suggest it was appropriate for the CAO Team,

rather than the full Council, to determine "how to proceed" regarding this

substantive conflict without public oversight. !d. at 504. The public has a right to

see more than just an alternative to the expert's recommendations-it has a right to

know when its money is being spent on the services of an expert whose

recommendations might include major substantive flaws based on the expert's

inability to "participate in problem solving in a constructive manner." Id. at 517.

And if the county spent its limited funds on an expert whose contributions were ill-

informed or unsupportable, it is a reasonable inference that the county had less

14 Citizens All. for Prop. Rights Legal Fund v. San Juan County, eta!., No. 90500-2 Yu, J. (concurring in part and dissenting in part)

money to spend on someone who would do the job well, exerting influence over

the Council's ultimate decisions.

If the Council had decided that some of the information it solicited,

gathered, and paid for with public funds was not sufficiently important, persuasive,

or probative enough to warrant consideration in formulating its policy decisions, it

would be exercising its actual decision-making authority. If, as the record

indicates, the CAO Team made such a decision without the Council's input, it

exercised decision-making authority on the Council's behalf. Depending on the

circumstances, such a decision could very well exert power or influence or produce

an effect on a governing body's entire decision-making process. 5

Allowing such decisions to occur behind closed doors is directly contrary to

one of the OPMA's fundamental principles: "The people, in delegating authority,

do not give their public servants the right to decide what is good for the people to

know and what is not good for them to know." RCW 42.30.010. In the words of

one council member, "[i]fthey want to watch the sausage grinding, ... they have

every right to witness the decision-making process and all the discussion that goes

5 This interpretation is fully consistent with the other activities that might subject a committee meeting to the OPMA's requirements-"conduct[ing] hearings, or tak[ing] testimony or public comment." RCW 42.30.020(2). The public clearly has a right to know the underlying information a committee considered if that information is presented orally. I cannot read the OPMA as granting a committee license to decide, on behalf of a governing body and behind closed doors, whether the public has a right to know about information presented in writing.

15 Citizens All. for Prop. Rights Legal Fund v. San Juan County, et al., No. 90500-2 Yu, J. (concurring in part and dissenting in part)

into arriving at whatever ordinance or resolution or whatever outcome we arrive

at." CP at 229.

The CAO Team was certainly a committee of the Council, and it may have

acted on the Council's behalf. I therefore respectfully dissent from the majority's

conclusion that the OPMA does not apply to the CAO Team as a matter of law.

16 Citizens All. for Prop. Rights Legal Fund v. San Juan County, eta!., No. 90500-2 Yu, J. (concurring in part and dissenting in part)