FIXING SALARIES IN EXECUTIVE SESSION

UNIVERSITIES ‑- COLLEGES ‑- OFFICERS AND EMPLOYEES ‑- OPEN PUBLIC MEETINGS ACT ‑- FIXING SALARIES IN EXECUTIVE SESSION 

It is not clearly a violation of the Washington Open Public Meetings Act for the board of regents of a state university to consider, and by duly adopted motion fix, the salary of its president in an executive session; the legislature, however, may amend the law in various ways to deal with the matter. 

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                                                                 January 30, 1985 

Honorable Phil Talmadge
State Senator, 34th District
432 Public Lands Building
Olympia, Washington 98504

Cite as:  AGO 1985 No. 4                                                                                                                  

 Dear Sir:

             By letter previously acknowledged you requested our opinion,

             ". . . as to whether or not the Washington State University's Board of Regents could meet in executive session to approve a . . . pay increase for the President of the University. . . ."

             We respond to your question in the manner set forth below.

                                                                      ANALYSIS

             Under the applicable provisions of Washington law it is the function of the various state university or college boards of regents or trustees to fix and determine the salaries payable to the presidents of those institutions.  In essence, as explained in AGO 1974 No. 15, that function is an aspect of the express statutory authorization given to each such board of regents or trustees ". . . [t]o employ the president of the university . . ."  See, RCW 28B.20.130(2); RCW 28B.30.150(2); and RCW 28B.35.120(2).

             Your question, as we understand it, relates to certain thereafter well-publicized action taken by the W.S.U. Board of Regents last fall adopting, in an executive session, a motion  [[Orig. Op. Page 2]] granting a pay raise to the president of the university.  That action received numerous press comments as well as expressions of concern by some legislators and others.  Some of those comments related to the size of the pay raise while others were critical of the way in which the matter was handled by the regents, procedurally.

             In turn, Dr. Terrell (the president) then voluntarily relinquished any rights he might have had to the pay raise and the matter was placed back on the regents' agenda for further consideration.  Thereupon, at a public meeting held in Pullman on January 18, 1985, the regents, in open session, granted him a somewhat smaller salary increase‑-utilizing the same formula as had been established for faculty pay increases, generally.  And thus, on that note, the particular matter giving rise to your opinion request has now been resolved.

             Nevertheless, you have indicated a continuing interest in introducing clarifying legislation with respect to the Open Public Meetings Act aspect of the matter.  We therefore will here describe to you the state of the law as it now exists so that you can make a reasoned, and informed, decision on what, if any, amendatory legislation is in order.

             To begin with, lest sight otherwise be lost of it, let us point out the obvious:  The question you have posed to us only arises where the authority to fix salaries is vested in a multi-member governing body.  That is so because the Open Public Meetings Act, by its own terms, is only applicable with respect to the activities of those multi-member bodies.  And what the law says, basically, is that those bodies shall conduct their business in the open, at meetings which the press and public may freely attend.  Accord, RCW 42.30.030 which reads:

             "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."

             In addition, RCW 42.30.060 provides as follows:

             "No governing body of a public agency shall adopt any ordinance, resolution, rule, regulation, order, or directive, except in a meeting open to the public and then only at a meeting, the date of which is fixed by law  [[Orig. Op. Page 3]] 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."

             Against that general backdrop, however, RCW 42.30.110 then provides that:

             "Nothing contained in this chapter shall be construed to prevent a governing body from holding executive sessions during a regular or special meeting to consider matters affecting national security; to consider the selection of a site or the acquisition of real estate by lease or purchase, when publicity regarding such consideration would cause a likelihood of increased price; to consider the disposition of real estate by lease or sale, when publicity regarding such consideration would cause a likelihood of decreased price; to consider negotiations on the performance of publicly-bid contracts when publicity regarding such consideration would cause a likelihood of increased costs; to considerthe appointment, employment, or dismissal of a public officer or employee: Provided, That interviewing of proposed appointees to elective office by a governing body shall not be conducted in executive session; or to hear complaints or charges brought against such officer or employee by another public officer, person, or employee unless such officer or employee requests a public hearing.  The governing body also may exclude from any such public meeting or executive session, during the examination of a witness on any such matter, any or all other witnesses in the matter being investigated by the governing body.  If executive sessions are held to discuss the disposition by sale or lease of real estate, the discussion shall be limited to the minimum selling or leasing price."  (Emphasis supplied)

             The critical issue raised by your question is thus whether the above‑underscored portion of RCW 42.30.110 covers the act of setting the salary of a public officer or employee‑-in this instance, a university president.  That issue, however, then itself must be broken down into several component parts;i.e.,

             (1) Does the function of considering the salaries of individual personnel come within the purview of so much of RCW 42.30.110 as permits a governing body to meet in executive session  [[Orig. Op. Page 4]] ". . . to consider the appointment, employment or dismissal of a public officer or employee . . ."?

             (2) In the event of an affirmative answer to that question, may "final action" (i.e., actually fixing the compensation of a particular individual) also be taken by the governing body in an executive session?

             (3) Does it make any difference, in terms of the answer to question (2), whether the final action involved takes the form of adoption of an ordinance, resolution, rule, regulation, order or directive rather than (as here) the mere passage of a motion duly made and seconded?

             Thus, as simple as the matter may have seemed to some at first blush, it is considerably more complicated under the law as it now exists.  The statute, RCW 42.30.110, requires interpretation because it is not clear, one way or another, on the particular point of whether a multi-member governing body may (a) consider and (b) determine the salaries of its personnel in an executive session.  Furthermore, there is little in decided Washington cases to indicate our court's view of the matter.  Indeed, the only case even remotely in point isPort Townsend Publishing Co., Inc. v. Brown, 18 Wn.App. 80, 567 P.2d 664 (1977) which held that a board of county commissioners could meet in a closed session to discuss various aspects of implementation of a program under the federally-funded Comprehensive Employment and Training Act (CETA).  Thereafter, however, although not necessarily as a reaction to that particular ruling, certain language of the statute was amended, by § 1, chapter 42, Laws of 1979.

             But notably, even as thus amended, the language of the Washington statute still closely tracks that of two similar Open Public Meetings laws in other states‑-Illinois and California.  In fact, as we observed several years ago in AGO 1971 No. 33, the Washington law (originally enacted as chapter 250, Laws of 1971, 1st Ex. Sess.) was clearly patterned after California's "Brown Act"‑-chapter 1588, Cal. Laws of 1953 as amended (Government Code, § § 54950-54961).  And, in both of those states, the question here presented has been considered and answered.  Moreover, the answer in both states is the same; namely, that it is permissible for a governing body to consider the salaries of its personnel in an executive session.

            In Illinois that ruling came in the form of a court decision, inPeople v. Board of Education, 353 N.E.2d 147 (1976).  There,  [[Orig. Op. Page 5]] indeed, the court was not even particularly charitable in dealing with the contention that the word "employment" in that state's statute1/ meant only "appointment" or "initial hiring," saying, at page 150:

             "We reject as 'absurd' the construction of the word 'employment' urged by the State, to mean only 'initial hiring' of an employee.  In Webster's Third New International Dictionary, the word 'employment' is defined as '[t]he act of employing someone . . . or the state of being employed . . ."  In Ballentine's Law Dictionary, 3rd Edition, 1969, 'employment' is defined as '[t]he act of employing or being employed . . .  This comprehends [for the purposes of the Social Security Act] not only work actually done, but the entire employer-employee relationship for which compensation is paid . . .'.  The normal import of the word 'employment' comprehends renewal or continuance of employment as well as compensation. . . ."  353 N.E.2d at 150.

           Likewise, in California, essentially the same interpretation of the statute is to be found in a line of formal attorney generals' opinions.  See, 61 Ops. Atty. Gen. 283 (1978), copy enclosed, and the earlier opinions cited and discussed therein.  The stated rationale for those rulings, as set forth in one of the earlier opinions, is much the same;i.e., that:

             ". . . the term 'employment' contained in section 54957 '. . . is broad enough to allow local public agencies, including governing boards of school districts, to consider all personnel matters relating to an individual employee at executive sessions and not simply matters relating to initial employment or final discharge.'"  59 Ops. Cal. Atty. Gen.,supra, at page 535.

              [[Orig. Op. Page 6]]

            We should also direct your attention to two other aspects of the Illinois and California laws.  First, in the Illinois statute there is, in addition, an express provision requiring "final action"‑-even on those matters which may be considered in an executive session‑-to be taken during the open, public, portion of the meeting.  Thus, all that was at issue in the Board of Education case,supra, was the ability of the board to discuss and consider‑-but not finally act upon‑-the salaries of its personnel in an executive session.

             Second, in California, we note that in 1970 the legislature enacted a law‑-not, however, a part of the Open Public Meetings Act‑-expressly prohibiting the California equivalent of our boards of county commissioners from fixing the salaries of their subordinate county officers (but not employees) in an executive session.  See, Govt. Code, § 25307.

             Conceivably, one or the other of those two tacks might be taken by the legislature in our own state.  You should also note, however, that neither the Illinois nor the California approach would preclude a governing body from considering salaries in an executive session so long as the "final action," actually fixing the salary or salaries involved, is taken during the open, public, portion of the meeting.  Let us explain this point in a bit more detail.

             As a general proposition under the Open Public Meetings Act the discussion and input stages are deemed to be an integral part of the process resulting in "action," and thus the law may not be evaded by severing the final action of the body from its preliminary discussion.  AGO 1971 No. 33,supra, at pages 11-19.  Both the Illinois and the California statutes, however, create an exception to that general proposition by allowing discussion in an executive session (assuming that the subject matter qualifies) while requiring final action in an open meeting.  Cf., in this state, the pattern which exists under RCW 42.30.060,supra, here repeated for ease of reference as follows:

             "No governing body of a public agency shall adopt any ordinance, resolution, rule, regulation, order, or 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  [[Orig. Op. Page 7]] 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."

             Thus in Washington as well the law provides for a form of severance in those situations where both RCW 42.30.110 and 42.30.060 apply.  If the "final action" involved in a given case takes one of the forms enumerated in the latter statute that statute seemingly requires such action to take place during an open, public, meeting‑-even though the subject matter may be such as to have allowed preliminary discussion and consideration during an executive session.

             In addition, however, there may be other types of "final action" which do not take the form of an ordinance, resolution, rule, regulation, order or directive.  For example, in terms of your immediate question, it is not at all clear that the mere passage of an ordinary motion (as opposed to a formal resolution) would fit into that RCW 42.30.060 mold.  Therefore, even if it were deemed to be a violation of the law for such action (because of the subject) to be taken in an executive session the consequence would only entail the possibility of civil penalties under RCW 42.30.120 and not a voiding of the action as such.

             Summary:

             What all of this means, in terms of your question, is basically as follows:

             (1) We cannot now say, in view of the Illinois and California rulings to the contrary under nearly identical statutory language, that it is currently a clear violation of the Washington Open Public Meetings Act for a multi-member governing body to consider and discuss the salaries of its personnel in an executive session.  If, therefore, a specific prohibition at that level is desired some form of amendatory legislation will be necessary.

            (2) The question of whether "final action" on an eligible subject may also take place during the executive session may depend, under existing law, upon form rather than substance; i.e., the above‑noted distinction between a formal resolution and a mere motion.  While it is arguable that substance, instead, should prevail‑-with the decision depending upon whether taking final action in the open would subvert the statutory purposes of the executive session exemption‑-that approach would involve a rather subjective standard which would be difficult to enforce in given  [[Orig. Op. Page 8]] cases.  Conversely, such "gray area" aspects of the Washington law could be resolved by passing either the Illinois (no final action during closed meetings) or California (no final action fixing salaries for designated personnel in executive session) type of law.

             (3) Assuming that amendatory legislation is deemed to be in order we should also note that somewhere in between those two poles (either a prohibition against any consideration of salaries in executive session, or ban only on final action at a closed meeting) there may be a further middle ground to be explored.  Our hope, on that count, would be that whatever the legislature says will be said with sufficient precision and clarity to be readily workable in the practical context of the various multi-member governing bodies involved.

             We would, of course, be happy to assist you in drafting whatever amendatory legislation the foregoing discussion suggests to you, or in reviewing that legislation when it has been drafted.  The matter, most certainly, is one which is worthy of review by the legislature at this time.

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General

PHILIP H. AUSTIN
Senior Deputy Attorney General