Port Commissions and other governing bodies subject to Washington’s Open Public Meetings Act (OPMA) have new guidance from the Washington Attorney General on conducting meetings remotely. Remote public meetings are allowed under certain conditions, but agencies should carefully assess the necessity of any meeting and reschedule or cancel meetings when possible.

First, note that the OPMA is about providing, not gathering, information. As such, this guidance applies to public meetings and not public hearings. Under Washington law, the public must be allowed to attend any meeting of the governing body of a public agency. Accordingly, whether conducted in person or remotely, a public meeting must have a physical location where interested people can be present. Further, the agency cannot place any conditions on attendance, such as registering identifying information.

If an agency intends to deliberate remotely, the physical location must have an audio speaker that enables attendees to hear discussions. “Meeting” by text and email would not suffice. A televised or live-streamed meeting without a physical location would also probably not meet the requirements. Therefore, agencies should maintain physical locations even when broadcasting.

Because an agency’s physical location may be too small to observe social distancing, an agency should provide public notice of any virtual means of participation and encourage the public to use them. The Attorney General suggests agencies should also consider:

• Is the meeting truly necessary or can some issues be set over for a future meeting?
• If there is information that could be distributed or made available in writing to the governing body and the public that does not need governing body action, can agency staff provide that information without a discussion?
• If the governing body accepts public comments, can it strongly encourage the public to submit them in writing?

An agency may reschedule meetings through the OPMA’s adjournment provisions. A quorum may adjourn any type of public meeting to a stated time and place, and less than a quorum may do so if a majority of members is absent. To adjourn a special meeting, though, at least one member of the governing body must be present. When adjourning a meeting, the governing body must prepare an order or notice that specifies the time and place of the rescheduled meeting and post it on or near the door of the meeting place. An agency that published a schedule of regular meetings in the Washington State Register must publish a notice of any change to the schedule at least 20 days prior to the rescheduled meeting.

An agency may also cancel meetings. However, for regular meetings, adjournment is better because the resulting rescheduled meeting will qualify as a regular meeting.

During an emergency, the presiding officer may suspend some requirements, including notice procedures, if the emergency creates a need for expedited action by a governing body to meet the emergency. But the Attorney General cautions that “[t]he fact that there is an emergency in the city or state (including one that has been declared by another agency), and which may impact the governing body in some way, may or may not mean there is a ‘need’ for ‘expedited action’ by that governing body itself to ‘meet the emergency.’” Therefore, we recommend adhering to normal notice requirements to the greatest extent possible.