APPLICABILITY OF OPEN PUBLIC MEETINGS ACT TO SERVICES AND ACTIVITIES FEES COMMITTEE

MEETINGS ‑- PUBLIC ‑- COLLEGES AND UNIVERSITIES ‑- FEES ‑- APPLICABILITY OF OPEN PUBLIC MEETINGS ACT TO SERVICES AND ACTIVITIES FEES COMMITTEE

The Washington Open Public Meetings Act (chapter 42.30 RCW) is applicable to meetings of services and activities fees committees at state institutions of higher education. 

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                                                                   March 8, 1983 

Honorable Nita Rinehart
St. Sen., 46th District
405 Public Lands Building
Olympia, Washington 98504

Cite as:  AGO 1983 No. 1                                                                                                                  

 Dear Senator Rinehart:

            By letter previously acknowledged, you requested our opinion as follows:

             "I would like to know if the Services and Activities Fees Committee at the University of Washington is subject to the rules of the Open Meetings Act."

             For the reasons set forth in our analysis, below, we answer your question in the affirmative.

                                                                      ANALYSIS

             The basic substantive requirements of the Open Public Meetings Act of 1971 (chapter 250, Laws of 1971, 1st Ex. Sess.), now codified as chapter 42.30 RCW, are as follows:

             RCW 42.30.030:

             "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."

             RCW 42.30.060:

             "No governing body of a public agency shall adopt any ordinance, resolution, rule, regulation, order, or  [[Orig. Op. Page 2]] directive, except in a meeting open to the public and then only at a meeting, the date of which is fixed by law or rule, or at a meeting of which notice has been given according to the provisions of this chapter.  Any action taken at meetings failing to comply with the provisions of this section shall be null and void."

             All of the key terms used in these two sections are expressly defined in RCW 42.30.020 as follows:

             "As used in this chapter unless the context indicates otherwise:

             "(1) 'Public agency' means:

             "(a) Any state board, commission, committee, department, educational institution or other state agency which iscreated by or pursuant to statute, other than courts and the legislature.

             ". . .

             "(2) 'Governing body' means the multimember board, commission, committee, council or other policy or rulemaking body of a public agency.

            "(3) 'Action' means 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.

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

           In AGO 1971 No. 33, copy enclosed, we considered and answered a number of questions pertaining to the scope and operation of that (then) new law.  One of those questions dealt, specifically, with whether advisory committees, boards and commissions are subject to the provision of the act insofar as their meetings are concerned.  We responded as follows:

             "There are in this state a multitude of various statutory  [[Orig. Op. Page 3]] and ad hoc advisory committees and groups.  We have seen that in order to be subject to the provisions of the act any such body must be a 'public agency' with a 'governing body.'  With regard to the first of these requirements, any state board or commission created by or pursuant to statute is clearly a 'public agency' under § 2(1)(a), supra, and this term also includes 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 commissioners, . . .' in these two subsections as meaning that a statute or ordinance has actually created the committee or has specifically authorized its creation.  Therefore, we do not believe that this definition would include those discretionaryad hoc groups which may be formed pursuant to a general, implied executive authority instead of a specific statute or ordinance.

             "As for the matter of a governing body, we note that the definition in § 2(2) speaks of boards, commissions, committees, councils or other policy or rule‑making bodies of a public agency.  The clear inference to be drawn from the word 'other' in this context is that the phrase 'policy or rule‑making' modifies those terms which precede it as well as those which follow.  See,State v. Hemrich, 93 Wash. 439, 161 Pac. 79 (1916), and cases discussed therein, involving an application of the doctrine of construction commonly referred to asejusdem generis.  Thus,even if a particular advisory committee is 'created by or pursuant to' a statute or ordinance, it will still not be governed by the act unless it possesses some aspect of policy or rule‑making authority.  In other words, its 'advice,' while not binding upon the agency with which it relates (otherwise it would not be an advisory committee at all), must nevertheless be legally a necessary antecedent to that agency's action;  e.g., as in the case of a planning commission which, we note, is expressly included as a 'public agency' in § 2(c), supra.  See, AGO 1971 No. 8, copy enclosed, wherein we reviewed the relationship between a county planning commission and a board of county commissioners."  (Emphasis supplied)

             With these principles in mind, let us now examine the statutes which govern the Services and Activities Fee Committee at the University of Washington‑-and, as well, at each of our other state institutions of higher education.

              [[Orig. Op. Page 4]]

            The imposition of "services and activities fees" upon students attending those educational institutions is provided for in RCW 28B.15.041.  Then RCW 28B.15.044 sets forth the following legislative declaration regarding use, or expenditure, of the resulting revenues:

             "It is the intent of the legislature that students will propose initial budgetary recommendations for consideration by the college or university administration to the extent that such budget recommendations are intended to be funded by services and activities fees.  It is also the intent of the legislature that services and activities fee expenditures for programs devoted to political or economic philosophies shall result in the presentation of a spectrum of ideas."

             And finally, RCW 28B.15.045 effectuates the foregoing by providing, in material part, that:

             ". . .

             "(1) Initial responsibility for proposing program priorities and budget levels for that portion of program budgets that derive from services and activities fees shall reside with a services and activities fee committee, on which students shall hold at least a majority of the voting membership . . .

             "(2) The services and activities fee committee shall evaluate existing and proposed programs and submit budget recommendations for the expenditure of those services and activities fees to the college or university administration.

             ". . .

             "(4) The college or university administration, at the time it submits its proposed budget recommendations . . . to the governing board, shall also transmit a copy of the services and activities fee committee recommendations. . .  Before adoption of the final budget the governing board shall address areas of difference between the committee recommendations and the administration's budget recommendations presented for adoption by the board. . . .

              [[Orig. Op. Page 5]]

            ". . ."

             Under the terms of this legislation a services and activities fees committee is, unquestionably, a state committee created by or pursuant to statute. It is, however, merely an advisory committee in the sense that its recommendations are not legally binding on the administration or the board of regents or trustees.  But as above noted, that latter proposition, by and of itself, does not render the Open Public Meetings Act inapplicable.  AGO 1971 No. 33,supra; and see also, our letter opinion of June 21, 1972 to State Representative Hal Wolf, a copy of which is also enclosed.  There, on the basis of AGO 1971 No. 33, we concluded that meetings of the State Purchasing Advisory Committee (as provided for in RCW 43.19.1902) are subject to the Open Public Meetings Act.  Why?  Because, we said‑-after quoting from RCW 43.19.1904:

             "It is clear from the last paragraph of the above statute that the advice of the committee is a necessary antecedent to the establishment of standards for materials, supplies and equipment which are binding upon all state agencies.  Thus the state purchasing advisory committee is a statutory entity which has been vested by the legislature with '. . . some aspect of rule‑making authority' . . ."

             By way of contrast, we also note another letter opinion which was written at about the same time to State Representative William Chatalas.  In that opinion, dated August 9, 1972, we concluded that meetings of the State Advisory Committee to the Department of Social and Health Services, as provided for in chapter 189, Laws of 1971, 1st Ex. Sess., were not subject to the Open Public Meetings Act because,

             ". . . the functions of the committee are advisory and recommendatory only, and . . . the committee's advice or action is not a necessary antecedent to any action by the Department of Social and Health Services or the secretary thereof.  . . ."

             Where, then, do the respective services and activities fee committees fall within this spectrum?  On the basis of a full and deliberate consideration of that question, it is now the opinion of this office (and we are so advising all of the affected institutions) that in view, particularly, of RCW 28B.15.045(4), supra, those committees are the kinds of advisory committees to which the Open Public Meetings Act applies.  In the words of AGO  [[Orig. Op. Page 6]] 1971 No. 33, supra, their "advice,"‑-while not binding upon the agencies to which they relate‑-is, nevertheless, ". . . legally a necessary antecedent to that agency's action; . . ."  We thus answer your question, as above stated, in the affirmative.  It is hoped that the foregoing will be of assistance to you.

 Very truly yours,
 KENNETH O. EIKENBERRY
Attorney General 

PHILIP H. AUSTIN
Deputy Attorney General