APPLICABILITY OF OPEN PUBLIC MEETINGS ACT TO A COMMITTEE OF THE GOVERNING BODY.

MEETINGS ‑- PUBLIC ‑- APPLICABILITY OF OPEN PUBLIC MEETINGS ACT TO A COMMITTEE OF THE GOVERNING BODY. 

(1) The definition of governing body, including any "committee thereof," covers both committees composed of members of the governing body and committees composed of nonmembers appointed by the governing body.

(2) A committee of the governing body is required to comply with the provisions of the Open Public Meetings Act when it acts on behalf of the governing body by exercising actual or de facto decisionmaking power.

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                                                               December 31, 1986 

Honorable Robert V. Graham
State Auditor
Legislative Building, AS-21
Olympia, Washington 98504

Cite as:  AGO 1986 No. 16                                                                                                                

 Dear Sir:

             By letter previously acknowledged, you have requested our opinion regarding an amendment to the Open Public Meetings Act (ACT), chapter 42.30 RCW, which defines the term "governing body."  (Section 1, chapter 155, Laws of 1983 amended RCW 42.30.020(2).)  The amendment expanded the definition of "governing body" to include "any committee thereof when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment."  You have requested our opinion about the meaning of the phrase underscored above.

             Your inquiry raises two questions which we phrase as follows:

             (1) Does a "committee thereof" include both committees composed of members of the governing body and committees composed of nonmembers of the governing body when appointed by the governing body?

             (2) Under what circumstances is a committee of a governing body required to comply with the provisions of the Open Public Meetings Act?

               [[Orig. Op. Page 2]]

            We answer the first question in the affirmative and the second question in the manner set forth in our analysis.

                                                                      ANALYSIS

             We begin our analysis by reciting two rules of statutory construction we will rely on in answering both questions.  The first rule of construction is that words in a statute that are not defined must be accorded their usual and ordinary meaning.  Pacific First Fed. Sav. & Loan Ass'n v. State, 92 Wn.2d 402, 409, 598 P.2d 387 (1979).  In determining the usual and ordinary meaning of words, it is appropriate to consult the dictionary.  See Purse Seine Vessel Owners Ass'n v. Moos, 88 Wn.2d 799, 808, 567 P.2d 205 (1977).

             The second rule of statutory construction is that where legislative intent is not clear from the language of the statute it is appropriate to consider the legislative history of the statute.  Bellevue Fire Fighters Local 1604 v. Bellevue, 100 Wn.2d 748, 751, 675 P.2d 592 (1984).  This legislative history can include the sequence of amendments to the statute as well as comments made during the statute's consideration.  See State v. Turner, 98 Wn. 2d 731, 735, 658 P.2d 658 (1983).

             With these two principles of statutory construction in mind, we turn to your first question:

             Does a "committee thereof" include both committees composed of members of the governing body and committees composed of nonmembers of the governing body when appointed by the governing body?

            To answer this question, we must first review what committees were subject to the Act prior to the 1983 amendment at issue here.  The Open Public Meetings Act was enacted in 1971.  Laws of 1971, 1st Ex. Sess., ch. 250.  The scope of the Act was set forth in section 3, (now codified as RCW 42.30.030) which stated:

             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 act.

 Laws of 1971, 1st Ex. Sess., ch. 250, § 3, p. 1114.

 [[Orig. Op. Page 3]]

            Under section 3 the Act applied only to the "governing body" of a "public agency."  The term "public agency" was specifically defined in section 2(1) to include committees and states:

             "Public agency" means:

             (a) Any state board, commission, committee, department, educational institution or other state agencywhich is created by or pursuant to statute, other than courts and the legislature.

             (b) Any county, city, school district, special purpose district or other municipal corporation or political subdivision of the state of Washington;

             (c)Any subagency of a public agency which is created by or pursuant to statute, ordinance, or other legislative act, including but not limited to planning commissions, library or park boards, and other boards, commissions, and agencies.  (Emphasis supplied)

 Laws of 1971, 1st Ex. Sess., ch. 250, § 2(1), p. 1113.

             In AGO 1971 No. 33, copy enclosed, we answered a number of questions pertaining to the scope and operation of the Act.  Two or those questions dealt specifically with whether certain committees and subcommittees were subject to the Act.  These two questions were as follows:

             Question (2):

             Are advisory committees, boards and commissions subject to the provisions of the open meetings act?

            . . .

             Question (3):

            When a governing body of a public agency forms a subcommittee composed of members of the governing body, is the subcommittee subject to the provisions of the open public meetings act?

 AGO 1971 No. 33, at 8-9.

 [[Orig. Op. Page 4]]

             With regard to question 2, we concluded that advisory committees, boards, and commissions were not subject to the Act unless they were "public agencies" under section 2(1) of the Act.  To be a public agency under section 2(1)(a) or (c), a committee or other group must be created "by or pursuant to statute, ordinance or other legislative act."  Based on this requirement, AGO 1971 No. 33 concluded:  "[W]e do not believe that this definition would include those discretionary ad hoc groups which may be formed pursuant to a general, implied executive authority instead of a specific statute or ordinance."  AGO 1971 No. 33, at 8.

             We reached a similar conclusion in responding to question 3, where we stated:

             Such a subcommittee is normally not created "by or pursuant to a statute, ordinance or other legislative act" and, therefore, it would not be included within the definition of a public agency.  If it is not a "public agency," then even though it has a multimember composition its activities would not be subject to the provisions of the act.  However, if the subcommittee membership is such that it comprises a majority of the governing body, then the "subcommittee" would have to be considered as the governing body itself, under the act, and would then be subject to all of the notification and meeting requirements of the act.

 AGO 1971 No. 33, at 9.

             Thus, as enacted in 1971, the Act did not apply to committees, subcommittees, and other groups that were not created by or pursuant to statute, ordinance, or other legislative act.

             This gap in the coverage of the Act seems to have been a matter of concern.  For example, in 1983 we received a letter from Representative Nelson inquiring whether certain committee meetings of the Washington Public Power Supply System (WPPSS) were subject to the Act.  We responded to this inquiry by letter dated March 18, 1983, copy enclosed.  In that letter, we referred Representative Nelson to AGO 1971 No. 33 and indicated that only committees created by or pursuant to a statute, ordinance, or other legislative act were subject to the Act.

             In 1983 the Legislature amended the definition of "governing body" in RCW 42.30.020(2) to include committees thereof.  The amendatory language in question here is as follows:

 [[Orig. Op. Page 5]]

             "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.

 Laws of 1983, ch. 155, § 1, p. 669.

             It appears to us that the purpose of this amendment was to extend the coverage of the Act to committees, subcommittees, and other groups that are not created by or pursuant to statute, ordinance, or other legislative act.  This conclusion is buttressed by the legislative history of the 1983 amendment.  In response to a point of inquiry, Senator Thompson, one of the sponsors, stated:

             Senator McDermott, this language does, indeed, relate to the WPPSS situation, because another portion of the bill that Senator Lee alluded to, brings committees of governing bodies under the effect of the open meetings act, which is substantial in its effect on WPPSS operations, because they have organized into committees.  The executive board is organized into committees and as I understand it, they are substantially conducting their business in that manner.  This has caused some concern, because an LBC auditor was even prevented from attending some of those sessions, even though he was under instruction to do so.  It does, indeed, apply to the WPPSS situation.

 Senate Journal, 48th Legislature (1983), at 880.

             Under the 1983 amendment, a committee is considered to be part of the governing body itself, even though the committee does not, in and of itself, constitute a new public agency or subagency because it is not created by or pursuant to statute, ordinance, or other legislative act.

             The thrust of your question goes to the scope of the term "committee thereof."  In our opinion, the term "committee thereof" includes all committees created by a governing body pursuant to its executive authority as opposed to a specific statute, ordinance, or other legislative act.  Thus, a "committee thereof" includes [[Orig. Op. Page 6]] committees composed solely of a minority of the members of the governing body.  It also includes committees composed of nonmembers of the governing body.

             We reach this conclusion for two reasons.  The first is the policy of the Act itself.  RCW 42.30.010 states:

             The people of this state do not yield their sovereignty to the agencies which serve them.  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.  The people insist on remaining informed so that they may retain control over the instruments they have created.

 RCW 42.30.910 further provides that the Act is remedial and shall be liberally construed.

             These two provisions were relied upon by the Supreme Court inCathcart v. Andersen, 85 Wn. 2d 102, 107, 530 P.2d 313 (1975).  In that case, the court ruled that the University of Washington Law School is a subagency and its faculty is a governing body subject to the Act.

             The second reason for our conclusion is the plain meaning of the words "committee thereof."  Neither of these words is defined in the statute.  Thus, we must resort to their usual and ordinary meaning.  The term "committee" is defined as "2a:  a body of persons delegated to consider, investigate, or take action upon and usu. to report concerning some matter of business; . . ."  Webster's Third New International Dictionary 458 (1971).

             There are two significant points about the definition of the word "committee."  The first is that a committee is a body of persons.  This definition would apply equally to any group, be it called a committee or some other name such as board or council.  The second is that there is nothing in the definition that restricts the composition of the group to members of the governing body or, for that matter, to nonmembers of the governing body.  The definition includes both.

             The term "thereof" is defined as:  "1:  of that:  of it . . . 2:  from that cause:  from that particular:  Therefrom . . ."  Webster's Third New 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 [[Orig. Op. Page 7]] 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."

             Having concluded that the phrase "committee thereof" includes all committees, regardless of the identity of their members, we turn to your second question:

             Under what circumstances is a committee of a governing body required to comply with the provisions of the Act?

             The 1983 amendment at issue here added the following words to the term "governing body":  "or any committee thereof when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment."  Laws of 1983, ch. 155, § 1, p. 669.

             In responding to your second question, we are concerned with the phrase "when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment."  Your question focuses specifically on when a committee "acts on behalf of the governing body."  We begin our analysis by again turning to the dictionary.  The term "act" or "acts" has a number of definitions.  These include:

             4:  to discharge the duties of a specified office or post:  perform a specified function: . . .  5a:  to exert power or influence:  produce an effect . . .  b:  to produce a desired effect:  perform the function for which designed or employed:  work . . .

 Webster's Third New International Dictionary 20 (1971).  The term "on behalf of" is defined as:  "in the interest of:  as the representative of:  for the benefit of . . ."  Webster's Third New International Dictionary 198 (1971).

             These definitions present two alternate meanings to the phrase "acts on behalf of."  On the one hand, a committee might act on behalf of the governing body whenever it performs a specified function in the interest of the governing body.  This would be a [[Orig. Op. Page 8]] very broad definition.  Under this construction, all acts of a committee would be subject to the Act, just as a governing body is subject to the Act whenever it meets to take action.

             On the other hand, 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.  This is a narrower interpretation of the phrase.  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.

             The policy of the Act set out in RCW 42.30.010 and the legislative declaration of liberal construction in RCW 42.30.910 support the broad interpretation of the phrase.  However, we are persuaded that the narrower construction correctly reflects the intent of the Legislature.

             We reach this conclusion for two reasons.  The first is the rule or statutory construction that the Legislature is presumed not to have used superfluous words.  If possible, each word in a statute is to be accorded meaning.  State v. Lundquist.  60 Wn.2d 397, 403, 374 P.2d 246 (1962).  Here, 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 committee meetings were subject to the Act.

             RCW 42.30.030 provides that "[a]ll meetings of the governing body of a public agency shall be open and public . . . ."  The term "meeting" is defined as "meetings at which action is taken."  RCW 42.30.020(4).

             Before 1985, the word "action" was defined in RCW 42.30.020(3) as:

            the transaction of the official business of a public agency by a governing body including but not limited to a collective decision made by a majority of the members of a governing body, a collective commitment or promise by a majority of the members of a governing body to make a 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.

 Laws of 1971, 1st Ex. Sess., ch. 250, § 2(3), p. 1114.

  [[Orig. Op. Page 9]]

             In AGO 1971 No. 33, we interpreted the term "action" broadly.  Under our construction, the Act applied to any meeting of a majority of the members of a governing body, even an informal one, where matters within the ambit of the agency's official business were considered.  This interpretation is reinforced by the 1985 amendment to the definition which is even broader than the 1971 definition.  Laws of 1985, ch. 366, § 1, p. 1301.1/

             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."

             The second reason we conclude that the phrase should be narrowly construed is the legislative history of the amendment.  the 1983 amendment was introduced as part of Senate Bill 3206.  That bill would have amended the definition of "governing body" by [[Orig. Op. Page 10]] adding the following language to the definition:  "or any committee thereof if the committee is authorized to act on behalf of the governing body in conducting hearings, taking testimony or public comment, or deliberating the making of policy or rules."  Senate Bill 3206, 48th Legislature (1983).

             Subsequently, Senate Bill 3206 was replaced by Substitute Senate Bill 3206.  The substitute bill narrowed the amendment to the term governing body as follows:  "or any committee thereof if the committee is authorized to act on behalf of the governing body, conduct hearings or take testimony or public comment."  Substitute Senate Bill 3206, 48th Legislature (1983).

             The substitute bill eliminated the phrase "or deliberating the making of policy or rules."  We believe this change indicates that the Legislature did not intend to extend the coverage of the Act to committees that do nothing more than deliberate the making of policy or rules.

             The 1983 amendment to the term "governing body" was modified once more on the floor of the Senate in an amendment proposed by Senator Hemstad.  His amendment struck the language:  "if the committee is authorized to act on behalf of the governing body, conduct hearings, or take testimony or public comment."  In its place Senator Hemstad proposed the following language:  "when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment."  Senate Journal, 48th Legislature (1983), at 881.

             On the floor of the Senate, Senator Hemstad explained the purpose of the amendment as follows:

             Frankly, I was thus very uncertain as to how far that would go because it does not limit the situation to where it was acting on behalf of the governing body, conducting hearings or taking public comment but was authorized to.  So it would mean that any subcommittee acting in other kinds of capacities would at least technically come within the scope of the new language.  I think my phrasing now if it says when the committee acts on behalf of the governing body, conducts hearings and takes testimony or public comment, it would then require to be open would limit it, define it, and I think would make it more acceptable.

 Senate Journal, March 30, 1983 (transcribed from tape).

  [[Orig. Op. Page 11]]

             The Senate adopted the Hemstad amendment and this is the language that became law.  The Hemstad amendment further demonstrates that the Legislature did not intend all committee meetings to be subject to the Act.

             This conclusion is also supported by the legislative history of the 1983 amendment in the House of Representatives.  In response to a point of inquiry from Representative Isaacson, Representative Hine described the scope of the 1983 amendment as follows:

             Mr. Isaacson:  "Representative Hine, would formal notices be required when preliminary discussions were being held by members of the city council and city staff?"

             Ms. Hine:  "Representative Isaacson, I believe that is not the intent of this legislation."

             Mr. Isaacson:  "Would the bill apply to the meeting of a budget committee consisting of less than a majority of the governing body, discussing the budget with a department head?"

             Ms. Hine:  "No, Representative Isaacson."

             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 the 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 they may have.  Those would not require the official formal notice."  (Emphasis supplied.)

 House Journal, 48th Legislature (1983), at 1294.

             In our judgment, this legislative history establishes that the Legislature intended the narrower definition of the phrase "acts on behalf of."  Based on this narrow definition, we conclude that a committee acts on behalf of the governing body when it exercises actual or de facto decisionmaking authority for the governing body.  This is in contrast to the situation where the committee simply  [[Orig. Op. Page 12]] provides advice or information to the governing body.  In our opinion such advisory committees do not act on behalf of the governing body and are therefore not subject to the Act.

             Since your question does not pose a specific factual situation, we are unable to say precisely when a committee acts on behalf of the governing body and is thus subject to the Act.  The line between exercising actual or de facto decisionmaking powers and simply giving advice will obviously depend upon the responsibilities and powers of the particular committee in question.  Two decisions by the Supreme Court of Oklahoma interpreting that state's open meeting law, prior to its repeal and reenactment in 1977, illustrate this distinction.

             Oklahoma's prior open meeting law provided that all meetings of certain governing bodies must be public meetings.  25 O.S. 1971 § 201.  InSanders v. Benton, 579 P.2d 815 (Okla. 1978) the court considered the application of the open meeting law to a citizens advisory committee impaneled to provide information to assist in determining the site for a community treatment center.  The plaintiff claimed that the citizens advisory committee was subject to the open meeting law because it was acting for and on behalf of the Board of Corrections, which was clearly a governing body subject to the Oklahoma law.  InSanders, the court ruled that the citizens advisory committee was not subject to the open meeting law because the citizens advisory committee exercised no governmental powers or decisionmaking authority.

             The court inSanders distinguished its decision in Carl v. Board of Regents, 577 P.2d 912 (Okla. 1978).  Carl concerned an admissions board of the University of Oklahoma.  The court ruled that the admissions board was subject to the open meeting law because the Board of Regents, which was ultimately responsible for admissions, had delegated decisionmaking authority to the admissions board to select students for the college of medicine.

             In our opinion a committee acts on behalf of the governing body when it exercises actual or de facto decisionmaking power, such as the admissions board inCarl.  Such a committee is subject to the Act whenever it meets to conduct business related to the exercise of its decisionmaking power.  An advisory committee, such as the citizens advisory committee in Sanders, is not subject to the Act.

             A committee that exercises decisionmaking power and also serves a separate advisory function is subject to the Act when it  [[Orig. Op. Page 13]] meets to conduct business related to the exercise of decisionmaking power.  To the extent the committee has a separate advisory role, it is not subject to the Act when it meets to conduct business related to that advisory role.  However, where a committee performs both functions it is subject to the Act unless the advisory function can be separated from the exercise of its decisionmaking authority.

             We trust that the foregoing will be of assistance to you.

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General 

WILLIAM B. COLLINS
Assistant Attorney General

CHRISTINE O. GREGOIRE
Deputy Attorney General 

                                                         ***   FOOTNOTES   ***

 1/"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.  "Final action" means a collective ((decision made by a majority of the members of a governing body to make a)) 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.