Bob Ferguson
Other LanguagesAGLO 1972 No. 48 -
Attorney General Slade Gorton
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June 21, 1972
Honorable Hal Wolf
State Representative, 22nd District
Clark Road
Yelm, Washington 98597 Cite as: AGLO 1972 No. 48 (not official)
Dear Sir:
We are writing in response to your recent letter requesting our opinion on a question which we paraphrase as follows:
Are the meetings of the state purchasing advisory committee, as provided for in RCW 43.19.1902, subject to the provisions of the open public meetings act of 1971 (chapter 250, Laws of 1971, Ex. Sess.)?
ANALYSIS
We believe that this question is answerable in the affirmative.
The basic substantive requirements of chapter 250, supra, are set forth in §§ 3 and 6 thereof, as follows:
"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." (Section 3.)
"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 according to the provisions of this act. Any action taken at meetings failing to comply with the provisions of this section shall be null and void." (Section 6.)
All of the key terms used in these two sections are expressly defined by § 2, as follows:
[[Orig. Op. Page 2]]
"As used in this act unless the context indicates otherwise:
"(1) 'Public agency' means:
"(a) Any state board, commission, committee, department, educational institution or other state agency which 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.
"(2) 'Governing body' means the multi-member board, commission, committee, council or other policy or rule‑making 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 [[to King Lysen, State Representative, October 29, 1971]], copy enclosed, we considered and answered some twenty questions pertaining to the scope and operation of this new act. One of these questions dealt, specifically, with the matter of whether advisory [[Orig. Op. Page 3]] committees, boards and commissions are subject to the provisions of the act ‑ insofar as their meetings are concerned. We responded as follows:
"There are in this state a multitude of various statutory 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 commissions, . . .' (Section 2 (1) (c), supra.) We read the phrase 'by or pursuant to statute . . .' 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 discretionary ad 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 as ejusdem 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, [[Orig. Op. Page 4]] is expressly included as a 'public agency' in § 2 (c), supra. See, AGO 1971 No. 8 [[to Earl F. Angevine, Prosecuting Attorney, February 10, 1971]], copy enclosed, wherein we reviewed the relationship between a county planning commission and a board of county commissioners."
With these principles in mind let us now examine the statutes which govern the state purchasing advisory committee. First to be noted is RCW 43.19.1902, which provides as follows:
"There is hereby created a state purchasing advisory committee which shall consist of seven members as follows: The director of general administration as chairman, and a representative from each of the following six state agencies, who shall be appointed by the governor based upon recommendations of the head of the agency from which the selection is made; the department of highways, the department of institutions, the department of natural resources, the University of Washington, Washington State University and the central budget agency. Members of the advisory committee shall serve without additional compensation and at the pleasure of the governor. Four members of the advisory committee shall constitute a quorum. The advisory committee shall meet upon call of the chairman and shall adopt rules and regulations for the conduct of its business. The chairman may appoint special committees for the study of specific subjects, which special committees may include representatives of such other state agencies as may be deemed appropriate."
Thus, clearly, this committee meets the first element of the test enunciated in our prior opinion; i.e., it is an agency created by statute. As for the second element, we turn to RCW 43.19.1904 which sets forth the powers and duties of this advisory committee as follows:
"The state purchasing advisory committee shall advise and give assistance to the director of general administration in planning and carrying out the most efficient and economical purchasing program.
"The state purchasing advisory committee shall [[Orig. Op. Page 5]] review and make recommendations to the director with respect to:
"(1) Standards and specifications for all items of material, supplies and equipment of common usage in state agencies;
"(2) Specifications for specific items of material, supplies and equipment referred to it by the division of purchasing;
"(3) Standards for the purchase, replacement and repair of automotive equipment consistent with the needs and location of state agencies;
"(4) A uniform system of inventory control for material, supplies and equipment;
"(5) All other matters referred to it by the director or by a member of the advisory committee.
"The state purchasing advisory committee shall act as an appeals board to hear appeals on matters involving a state agency and the division of purchasing, and shall render its decision relating thereto within thirty days after filing of the appeal. The findings and actions of the advisory committee shall be binding upon the respective state agencies including all offices, institutions, and departments.
"Public funds shall not be expended by any agency for substitutions for material, supplies and equipment for which standards have been established by the division of purchasing after consulting with and receiving the recommendations of the advisory committee unless prior written approval is obtained from the division of purchasing." (Emphasis supplied.)
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 [[Orig. Op. Page 6]] a statutory entity which has been vested by the legislature with ". . . some aspect of rule‑making authority . . ."
Accordingly, consistent with AGO 1971 No. 33, supra, we conclude that this committee is subject to the provisions of the open public meetings act ‑ insofar as the conduct of any of its meetings is concerned.
We trust that the foregoing will be of some assistance to you.
Very truly yours,
FOR THE ATTORNEY GENERAL
Richard A. Heath
Assistant Attorney General