IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
CITIZENS ALLIANCE FOR PROPERTY RIGHTS LEGAL FUND, A Washington non-profit corporation, No. 70606-3-1
Appellant,
v.
ORDER GRANTING MOTION SAN JUAN COUNTY, a Washington TO PUBLISH and the SAN JUAN COUNTY CRITICAL AREA ORDINANCE/SHORELINE MASTER PROGRAM IMPLEMENTA TION COMMITTEE, a subcommittee of the San Juan County Council,
Respondents.
Washington State Association of Municipal Attorneys filed a motion to
publish the unpublished opinion filed in the above mater on April 28, 2014. The
court called for an answer to the motion. Answers to the motion to publish was
filed by the appellants, by Allied Daily Newspapers of Washington, and
Washington Coalition for Open Government.
A majority of the panel has determined that the motion to publish should
be granted. Now, therefore, it is hereby
ORDERED that the motion to publish the opinion is granted.
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CITIZENS ALLIANCE FOR PROPERTY RIGHTS LEGAL FUND, A Washington non-profit corporation, No. 70606-3-1
Appellant, DIVISION ONE
SAN JUAN COUNTY, a Washington PUBLISHED OPINION and the SAN JUAN COUNTY CRITICAL AREA ORDINANCE/SHORELINE MASTER PROGRAM IMPLEMENTA TION COMMITTEE, a subcommittee of the San Juan County Council,
Respondents. FILED: April 28. 2014
Spearman, C.J. — The central issue in this case is whether members of
the San Juan County Council (the Council) violated the Open Public Meetings
Act (OPMA) by attending a series of closed meetings as part of a working group
known as the San Juan County Critical Area Ordinance/Shoreline Master
Program Implementation Committee (CAO Team).1 Citizens Alliance for Property
Rights Legal Fund (CAPR) appeals the trial court's summary judgment dismissal
of its lawsuit against San Juan County (the County) and the CAO subcommittee,
1This group is referred to by several different names in the record, including CAO/SMP Implementation Committee, CAO/SMP Implementation Team, CAO Facilitation Group, and Pete's Implementation Team. For simplicity, it is referred to herein as the "CAO Team." No. 70606-3-1/2
arguing that the trial court misinterpreted and misapplied several key provisions
of OPMA and erroneously ruled that there were no genuine issues of material
fact. Finding no error, we affirm.
FACTS
In 2010, San Juan County began the process of updating its Critical Area
Ordinances pursuant to the Growth Management Act, chapter 36.70A RCW. The
CAO Team, which included members of the County executive staff as well as
three of San Juan County's six councilmembers, was formed to facilitate and
coordinate the County's efforts in this regard. The CAO Team did not open its
meetings to the public.
In April 2012, San Juan County Prosecuting Attorney Randall Gaylord
issued a memorandum advising the Council that "no meetings of three council
members should occur without complying with the notice and other requirements
of the Open Public Meetings laws." Clerk's Papers (CP) at 452. Gaylord
acknowledged that the law in this regard is uncertain, but opined that "[e]ven if
the law is not clear, the better approach is to err on the side of following the Open
Public Meetings Act." CP at 452. The Council members followed Gaylord's
advice and immediately discontinued this practice.2
Ten months later, the Council adopted four critical areas ordinances. Prior
to adoption, the Council held approximately 75 public meetings to discuss the
2 In November 2012, the voters of the County changed the Council from a six to a three member governing body, effective May 2013. No. 70606-3-1/3
critical areas ordinance and provide opportunity for public comment. More than
30 of these meetings occurred after the CAO Team stopped meeting in April
2012.
In October 2012, CAPR filed a complaint against the County, the CAO
Team, and Councilmembers Richard Fralick, Patty Miller, and Lovel Pratt,
alleging that the CAO Team meetings violated the OPMA. CAPR requested (1)
nullification of all actions taken in violation of OPMA; (2) civil penalties against
each member that committed knowing violations of OPMA; (2) an award of costs
and attorney fees; and (4) injunctions enjoining future violations of OPMA and the
Growth Management Act. In an Amended Complaint filed in November 2012,
CAPR non-suited its Growth Management Act injunction action, dismissed its
claim against the individual Council members, and waived civil penalties.
The County moved for summary judgment, arguing that CAPR lacked
sufficient evidence to support its case. CAPR submitted voluminous evidence in
response.3 In a letter decision, the trial court concluded that CAPR had failed to
show that there was an issue of material fact regarding whether the CAO Team
meetings violated the OPMA, and granted summary judgment to the County. The
3 CAPR argues that the trial court should have treated the County's summary judgment motion as a motion for judgment on the pleadings under CR 12(c) because the County only attacked allegations in CAPR's complaint and failed to submit affidavits or identify portions of the record which demonstrate the absence of a genuine issue of material fact. This argument lacks merit. Even assuming for the sake of argument that the County's motion was functionally a motion for judgment on the pleadings, it was converted to a motion for summary judgment when CAPR submitted evidence in response. CR 12(c); P.E. Systems, LLC v. CPI Corp., 176 Wn.2d 198, 206, 289 P.3d 638 (2012). We also note that both parties had a reasonable opportunity to present materials relevant to a summary judgment motion within the CR 56(c) time for response.
-3 No. 70606-3-1/4
trial court also denied CAPR's subsequent motion for reconsideration.4 CAPR
appeals.5
DISCUSSION
This court reviews an appeal from summary judgment de novo. Bostains
v. Food Express. Inc., 159 Wn.2d 700, 708, 153 P.3d 846 (2007). Summary
judgment is appropriate only if "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, ifany, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." CR 56(c). All facts and reasonable
inferences are construed in the light most favorable to the nonmoving party.
Shoulberq v. Public Utility Dist. No. 1 of Jefferson Cv., 169Wn.App. 173, 177,
280 P.3d 491 (2012), rev. denied. 175 Wn.2d 1024 (2012).
"[A] party moving for summaryjudgment can meet its burden by pointing
out to the trial court that the nonmoving party lacks sufficient evidence to support
its case." Guile v. Ballard Community Hosp.. 70 Wn. App. 18, 21, 851 P.2d 689
(1993). "After the moving party meets its initial burden to show an absence of
4 CAPR contends that the trial court erred in dismissing CAPR's complaint in its entirety, including its claims against the San Juan County Council's Budget Subcommittee, General Governance Subcommittee, and Solid Waste Subcommittee, because the County's motion for summary judgment only sought dismissal of allegations against the CAO Team. Thisargument lacks merit. CAPR's allegations and arguments focused solely on the CAO Team. CAPR made some passing references to the othersubcommittees in its amended complaint and response to the County's motion for summaryjudgment, but did not name those subcommittees as defendants, include them in its claim for relief, or provide evidence and argument in supportof its assertion that they violated OPMA.
5Allied Daily Newspapers ofWashington, Washington Newspapers Publishers Association, and Washington Coalition for Open Government also filed an amicus brief.
4- No. 70606-3-1/5
material fact, the inquiry shifts to the party with the burden of proof at trial. . .."
West v. Thurston Cv.. 169 Wn.App. 862, 866, 282 P.3d 1150 (2012) rev. denied.
176Wn.2d 1012 (2013). citing Young v. Kev Pharm.. Inc.. 112 Wn.2d 216, 225,
770 P.2d 182 (1989). "If the moving party is a defendant and meets this initial
showing, then the inquiry shifts to the party with the burden of proof at trial, the
plaintiff:" Young. 112 Wn.2d at 225. "If, at this point, the plaintiff 'fails to make a
showing sufficient to establish the existence of an element essential to that
party's case, and on which that party will bear the burden of proof at trial,' then
the trial court should grant the motion." Young, 112 Wn.2d at 225, quoting
Celotex Corp. v. Catrett. 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986).
Email exchange
"[T]he OPMA is a comprehensive statute, the purpose ofwhich is to ensure that governmental actions take place in public." Feature Realty. Inc. v. City of Spokane. 331 F.3d 1082, 1086 (9th Cir. 2003). OPMA contains a strongly
worded statement of purpose: "The legislature finds and declares that all public
commissions, boards, councils, committees, subcommittees, departments,
divisions, offices, 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. The statute mandates liberal construction to further its policies and purpose. RCW 42.30.910. No. 70606-3-1/6
To enforce OPMA's civil penalty provision, plaintiffs must show (1) that a
member of a governing body (2) attended a meeting of that body (3) where
action was taken in violation of OPMA and (4) the member had knowledge that
the meeting violated OPMA. Wood v. Battle Ground Sch. Dist.. 107 Wn. App.
500, 558, 27 P.3d 1208 (2001). Where, as here, plaintiffs are not seeking to
enforce the civil penalties provision, the fourth factor is inapplicable.6 OPMA provides that "[a]ll 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." RCW 42.30.030. A "governing body" is "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 ofthe governing body, conducts hearings, ortakes testimony or public comment." RCW 42.30.020(2). A "public agency" is "[a]ny county, city, school district, special purpose district, or other municipal corporation or political subdivision ofthe state of Washington." See RCW 42.30.020(1 )(a). "Meeting" is defined as "meetings at
6 There is some confusion in the case law regarding the proper standard to avoid summary judgment dismissal ofan OPMA claim that does not involve civil penalties. In Eugster v. Citv of Spokane. 110 Wn. App. 212, 222, 39 P.3d 380 (2002), Division Three citedWood in stating that "[to] defeat summary judgment dismissal of an OPMA claim, the plaintiff must submit evidence showing "(1) that a 'member' ofa governing body (2) attended a 'meeting' of that body (3) where 'action' was taken in violation ofthe OPMA, and (4) that the member had 'knowledge' thatthe meeting violated OPMA." Wood. 107 Wn. App. at 558. However, the Wood court was specifically addressing a request to impose civil penalties under RCW 42.30.120(1), which requires a showing that the member knowingly violated OPMA. The other three remedies available under OPMA do notrequire proof of knowledge. See RCW 42.30.060(1) (nullification of action); RCW 42.30.120(2) (attorney fee award); RCW 42.30.130 (injunction). Thus, it is not appropriate to graft a knowledge requirement onto the test for overcoming summary judgment where civil penalties are not at issue. No. 70606-3-1/7
which action is taken." See RCW 42.30.020(4). "Action" means "the transaction
of the official business of a public agency by a governing body including but not
limited to receipt of public testimony, deliberations, discussions, considerations,
reviews, evaluations, and final actions." See RCW 42.30.020(3).
Clearly, the Council is the "governing body" of a "public agency." However,
under Washington case law, a gathering that includes less than a majority of the
governing body does not violate OPMA. Wood, 107 Wn. App. at 564, citing In re
Recall of Beaslev. 128 Wn.2d 419, 427, 27 P.3d 878 (1996) and In re Recall of
Roberts. 115 Wn.2d 551, 554, 799 P.2d 734 (1990). At all times relevant to this
case, the Council had six members. Therefore, a gathering that includes three
councilmembers does not constitute a "meeting" of the Council for OPMA
purposes, regardless of whether "action" is taken.
CAPR contends that on November 14, 2011, four of six councilmembers
held a "meeting" in violation of OPMA by participating in an email and telephone
exchange in which they discussed CAO Team matters. The trial court properly
rejected this argument, both on the merits and because CAPR first advanced the
argument in its motion for reconsideration. "[T]he OPMA does not require the
contemporaneous physical presence of [members of the governing body] in order
to constitute a meeting." Eugster. 110 Wn. App. at 224. An exchange of emails
can constitute a "meeting" for OPMA purposes. Wood. 107 Wn. App. at 564.
However, "the mere use or passive receipt of e-mail does not automatically
constitute a 'meeting.'" Wood. 107 Wn. App. at 564. Viewed in the light most No. 70606-3-1/8
favorable to CAPR, the record shows that at most three councilmembers
(Richard Fralick, Lovel Pratt, and Rich Peterson) participated in the active
discussion of issues by phone or email. The fourth councilmember, Patty Miller,
received a copy of the email, but there is no evidence that she responded or
actively participated in the discussion.
CAPR also vaguely asserts that four Council members were present at
other "meetings of the subcommittees" but fails to back up this claim with
argument or citations to the record. We need not consider it. State v. Dennison.
115Wn.2d609, 629, 801 P.2d 193(1990); RAP 10.3(a)(5).
Negative Quorum
CAPR argues that this court should create a new rule and hold that a
"meeting" occurs for the purposes of OPMA when the number of members
present is sufficient to block action when the matter discussed comes up for a
vote before the governing body, thereby constituting a "negative quorum." In
support, CAPR cites a Wisconsin case, State ex rel. Newspapers. Inc. v.
Showers. 135 Wis.2d 77, 398 N.W.2d 154 (1987). In Showers, four members of
an eleven member body met to discuss budget measures. Showers. 135 Wis.2d
at 80. Passing the budget measure required a two-thirds vote, meaning that eight
out of eleven members had to approve the change. ]d. The Wisconsin Supreme
Court held that Wisconsin's Open Meeting Law applied because four members
could block the parent body's course of action regarding the proposal discussed
at the meeting by voting together. Id. at 80. Prior to May 2013, the Council had
8 No. 70606-3-1/9
six members, with at least four votes necessary to pass ordinances. Therefore,
applying the reasoning of Showers. CAPR contends that a gathering of three
councilmembers constitutes a "negative quorum" to which OPMA requirements
should apply.
No Washington cases directly address the reasoning of the Showers case.
San Juan County Prosecutor Randall Gaylord cited Showers in his April 2012
memorandum advising the Council that OPMA requirements should be followed
when three of six councilmembers gather to discuss County business. Given the
OPMA's mandate for liberal construction, this argument is not frivolous.
Nevertheless, we decline to follow Showers. As an out-of-state case, it is not
binding on this court. Moreover, it would carve out a significant exception to well-
established Washington precedent holding that OPMA does not apply where a
majority of the governing body is not present. See Beasley. 128 Wn.2d at 427 (in
recall action, no meeting of majority of school board); Roberts. 115 Wn.2d at 554
(in recall action, no meeting of majority of town councilmembers). We also note
that, effective May 2013, San Juan County voters reduced the size of the Council
from six members to three, thereby eliminating the possibility that the negative
quorum issue could arise again in San Juan County.
Governing Body
CAPR next argues that it does not matter ifa majority of the Council was
not present at CAO Team meetings, because the CAO Team itselfwas a
"governing body" subject to OPMA requirements. The term "governing body"
9- No. 70606-3-1/10
includes "the multimember board, commission, committee, council, or other
policy or rule-making body of a public agency," as well as "any committee thereof
when the committee acts of behalf of the governing body, conducts hearings, or
takes testimony or public comment." RCW 42.30.020(2). According to CAPR, the
CAO Team was a "governing body" because it was a "committee" of the Council
that "acted on behalf of the Council.7 Therefore, CAPR contends that a
"meeting" occurred for OPMA's purposes each time the CAO Team met and
"acted on behalf of the Council, regardless of how many councilmembers were
present.
The OPMA does not define the phrase "acts on behalf of."8 OPMA defines
"action" as "the transaction of the official business of a public agency by a
governing body including but not limited to receipt of public testimony,
deliberations, discussions, considerations, reviews, evaluations, and final
actions." RCW 42.30.020(3). Applying common law principles of agency, amici
argue that a committee "acts on behalf of a governing body when it takes
"action" as defined in RCW 42.30.020(3) on behalf of the principal and under the
principal's control. CAPR and amici thus argue that the CAO Team "acted on
7 Because CAPR did not allege that the CAO Team ever conducted hearings or took testimony or public comment, that portion of RCW 42.30.020(2) is not at issue.
8 OPMA as originally passed in 1971 did not contain this phrase. The previous definition of "governing body" was "the multimember board, commission, committee, council, or other policy or rule-making body of a public agency." Former RCW 42.30.020 (1971). The statute was amended in 1983 to add the phrase "or any committee thereof when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment." RCW 42.30.020(3).
10 No. 70606-3-1/11
behalf of the Council because it took "action" by conducting ordinance-related
deliberations, discussions, considerations, and other business subject to the
Council's control.
There is no Washington case law directly addressing the circumstances
under which a committee "acts on behalf of a governing body.9 However, a 1986
Attorney General Opinion (AGO)10 specifically analyzed this question. The AGO
stated that there are two possible interpretations of the phrase "acts on behalf
of." First, "a committee might act on behalf of the governing body whenever it
performs a specified function in the interest of the governing body." AGO at 5.
Under this broad definition, a committee would be subject to the OPMA
whenever it meets and takes "action," just as governing bodies do. This is the
interpretation CAPR and amici urge us to adopt. Second, "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 governing body." jd. Under this
narrower definition, "a committee acts on behalf of the governing body only when
it exercises actual or de facto decision making authority for the governing body."
\± This is the interpretation the County urges us to adopt.
9 In Clark v. Citv of Lakewood. 259 F.3d 996, 1013 (9th Cir. 2001), the Ninth Circuit held that OPMA applied to a taskforce that took public testimony, held hearings, and acted on behalf ofthe governing body. The court concluded that these activities placed it "squarely within the ambit of RCW 42.30.020(2) without addressing the circumstances under which a committee "acts on behalf of a governing body.
10 AGO 1986 No. 16.
11 No. 70606-3-1/12
The AGO acknowledged that the statutory mandate for liberal construction
supports the broad definition, but nevertheless concluded that "the narrower
construction correctly reflects the intent of the legislature." jd. First, the AGO
noted that the phrase "when the committee acts on behalf of the governing body,
conducts hearings, or takes testimony or public comment" would be superfluous
if all committees were subject to the OPMA. The AGO observed that if the
legislature intended a broad interpretation of the phrase "acts on behalf of," it
would have used the word "action" instead of "acts" and added the words "or any
committee thereof to the definition of "governing body," thereby subjecting a
committee to the OPMA on the same basis as the governing body itself- when
"action" is taken, jd at 6. Second, the AGO carefully examined the legislative
history of the 1983 amendments to the definition of "governing body," which
suggest that the Legislature did not intend OPMA to apply to committees that "do nothing more than deliberate the making of policy or rules." AGO at 6. 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 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 thev may have. Those would not require the official formal notice. AGO at 7.
12 No. 70606-3-1/13
Thus, based on the narrower definition, the AGO concluded that "a committee
acts on behalf of the governing body when it exercises actual or de facto decision
making authority for the governing body. This is in contrast to the situation where
the committee simple provides advice or information to the governing body."
AGO at 7. Advisory committees would not be subject to OPMA. jd. at 8. We find
the AGO persuasive, and adopt its reasoning.
CAPR and amici argue that the trial court erred in relying on Loeffelholz v.
CLEAN.. 119 Wn. App. 665, 82 P.3d 1199 (2004) and concluding that the
CAO Team could not have "acted on behalf of the Council because there is no
evidence it had policy or rule making authority. In Loeffelholz. the plaintiff argued
that election workers were a "governing body" because the county canvassing
board delegated its authority to them. The court, citing Refai v. Central
Washington Univ.. 49 Wn. App. 1,13, 742 P.2d 137 (1987), held that the election
workers could not be a "governing body" unless they had "policy-making or rule
making authority." Loeffelholz. 119 Wn. App. at 704. According to CAPR and
amici, Loeffelholz is incorrect because Refai was based on the old definition of
"governing body," which was limited to a "board, commission, committee, council,
or other policy or rule-making body of a public agency. . .." Former RCW
42.30.020(2) (1983). The Refai court acknowledged in dicta that a "stronger
case" can be made for advisory bodies to be subject to OPMA under the new
definition of "governing body." ]d. at 14, n.5. To the extent that a committee might
exercise de facto decision making authority without being formally designated as
13 No. 70606-3-1/14
a policy or rule-making body, this argument does not lack merit. Ultimately,
however, it is irrelevant, because the trial court correctly relied on the 1986 AGO
and concluded there is no evidence that the CAO Committee exercised actual or
de facto decision making authority.
First, CAPR submitted no admissible evidence that the Council created
the CAO Team or delegated its decision making authority11. CAPR claims that
the County's public participation plan proves that the Council created the CAO
Team. This is incorrect. The plan merely includes a list of individuals responsible
for establishing the CAO Team, including the County administrator, the County
prosecutor, three members of the Council, and several other individuals. CAPR
also points to the testimony of San Juan County Planning Coordinator Shireene
Hale, who testified that the Council "would have created it." CP at 380. But the
trial court properly granted the County's motion to strike this statement as
hearsay, as there was no showing that she had personal knowledge to testify to
this belief. Furthermore, Council member Lovel Pratt testified that the County
Administrator created the CAO Team, and five Council Members submitted
11 CAPR's assertion that the trial court "determined that the Council created the CAO Subcommittee" is plainly incorrect. Appellant's Reply Brief at 10. The trial court simply stated that it "can further assume, for the sake of argument, and without deciding, that the committee was established by the county council, as opposed to the county administrator. In point of fact, there appears to be no competentevidence in the record to indicate that the committee was established by the county council " CP at 818. The trial court then stated that itsdecision would be the same regardless of whether the council or the county administrator created the team.
14- No. 70606-3-1/15
declarations stating that they took no action to create the Team or to delegate
authority to the Team.12
The trial court further concluded that even assuming for the sake of
argument that the County could direct the CAO Team to act on its behalf, there is
no evidence in the record indicating that it did so. CAPR contends that it did,
pointing to County Prosecutor Randall Gaylord's memo, in which he stated that
"[d]uring the course of committee meetings, 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.
CAPR also cites County planner Shireene Hale's statement that "this group was
trying to take care of some of the behind the scenes details so that the Council -
the full Council could focus on making policy decisions and having substantive
discussions and giving the staff direction on what they wanted to see." CP at 409.
Even viewed in the light most favorable to CAPR, these statements do not
provide evidence that the CAO Team exercised actual or de facto decision
making authority. Rather, they describe an advisory or information role.
12 CAPR contends that the trial court erred in granting the County's motion to strike Hale's statement and denying its motion to strike the declarations of the County Council members. We disagree. The County properly requested that the Court strike all inadmissible hearsay from CAPR'sdeclarations, and Hale's statement was clearly hearsay. CAPR'sassertion that the County's motion to strikewas not timely is particularly unconvincing, where the record shows that CAPR requested and was granted a motion to shorten time in order to file its own motion to strike, and the court considered the County's motion to strike at the same time. VRP (4/19/2013) at 3-4. The trial courtalso properly denied CAPR's motion to strike the Council members' statements, as they did not conflict with previous testimony.
15- No. 70606-3-1/16
In sum, we adopt the reasoning of the 1986 AGO and hold that a
committee "acts on behalf of a governing body when it exercises actual or de
facto decision making authority. Because CAPR submitted no evidence that a
majority of the Council attended CAO Team gatherings or that the CAO Team
exercised actual or de facto decision making authority, no "meeting" occurred for
OPMA purposes, and summary judgment was appropriate. Because CAPR is not
the prevailing party, it is not entitled to an award of attorney fees.
Affirmed.
\du^^Ca> t WE CONCUR: