Citizens Alliance for Property Rights Legal Fund v. San Juan County

Yu, J.

¶51 (concurring in part and dissenting in part) — “All political power is inherent in the people, and govern-*453merits 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-.30.010.1 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 whether and when the CAO Team acted on the Council’s behalf. I therefore respectfully dissent in part.8

ANALYSIS

¶52 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 if the CAO Team was a committee of the Council and only when it acted on the Council’s behalf. See majority at 444 & 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 of the Council

¶53 The OPMA applies to governing bodies of public agencies, such as the Council, and to “any committee thereof.” *454RCW 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 was a committee of, and based on the facts presented, I would hold that it was a committee of the Council.

¶54 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.” Id. 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.’ ” Id. at 6-7 (quoting Webster’s, supra, at 2372). This coverage is not limited to committees brought into being “through a formal legal instrument such as a legislative resolution or an executive directive.” Majority at 433. Quite the contrary.

¶55 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’t of Health, Educ. & Welfare, 215 U.S. App. D.C. 191, 668 F.2d 537, 542 (1981)). As eloquently stated in an informal opinion 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 *455995 (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.

¶56 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).9 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 approaches to government policy without being a committee of that government. But that is not all that happened here.

¶57 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.” SJCR 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.” Id.

*456¶58 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.” Id. 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. Id. 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. Id.

¶59 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[ulation]s and recommendations.” Id. 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.” Id. at 3.

¶60 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 *457have'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 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

¶61 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

¶62 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.

¶63 “[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.” Id. 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 *458subject to the OPMA to the same extent as meetings of the governing body. Id. 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.

¶64 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.

¶65 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 of the 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

¶66 Our ability to evaluate what the CAO Team did at any particular meeting is hampered by the fact that its meetings *459were 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.10 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.

¶67 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.

¶68 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 *460with the role of subcommittees.” Id. 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 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 “[hjaving 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.”11 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.

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.

*461¶69 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.

¶70 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 genuine question of fact as to whether identifying issues rose to the level of acting on behalf of the Council.

¶71 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.

¶72 It also appears there was an ongoing question about whether a scientific expert contracted by the county was in *462fact 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.

Id. 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 of the 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.

¶73 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. Id. 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 *463funds on an expert whose contributions were ill informed or unsupportable, it is a reasonable inference that the county had less money to spend on someone who would do the job well, exerting influence over the Council’s ultimate decisions.

¶74 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.12

¶75 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]f they want to watch the sausage grinding, . . . they have every right to witness the decision-making process and all the discussion that goes into arriving at whatever ordinance or resolution or whatever outcome we arrive at.” CP at 229.

CONCLUSION

¶76 The CAO Team was certainly a committee of the Council, and it may have acted on the Council’s behalf. I *464therefore respectfully dissent from the majority’s conclusion that the OPMA does not apply to the CAO Team as a matter of law.

Johnson and Stephens, JJ., concur with Yu, J.

Reconsideration denied December 18, 2015.

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.

The county has acknowledged that we may take judicial notice of this resolution, as well as SJCR 12-2010 (Peb. 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.

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

Other 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.

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.