OPEN PUBLIC MEETINGS ACT—HIGHER EDUCATION—PUBLIC MEETINGS

OPEN PUBLIC MEETINGS ACT—HIGHER EDUCATION—PUBLIC MEETINGS

Where A Faculty Academic Senate Is Not Created By Statute Or By The University’s Board Of Trustees, And Does Not Exercise Decision-Making Authority On Behalf Of The Board Of Trustees, The Senate Is Not A Governing Body Of A Public Agency Subject To The Open Public Meetings Act, RCW 42.30

March 14, 2022

Dear Dr. May:

            By letter previously acknowledged, you have requested our opinion on a question we have paraphrased as follows:

Is Eastern Washington University’s Academic Senate a committee of the University’s Board of Trustees that is subject to the requirements of the Open Public Meeting Act?

BRIEF ANSWER

            No. While the circumstances at other Washington public universities may be different, based on the facts you have provided, we conclude that Eastern Washington University’s Academic Senate is not subject to the Open Public Meetings Act. This is because the University’s Board of Trustees has not created the Senate, and the history of the Act’s amendments does not demonstrate a legislative intent to apply the Act’s requirements to self-created, university-level faculty bodies. Therefore, Eastern Washington University’s Academic Senate is not a committee of the Board subject to the Open Public Meeting Act. Moreover, to the extent Senate-approved policies are subject to the president’s adoption, the Academic Senate is not exercising actual or de facto decision-making authority, and so it is not acting on behalf of the Board when it approves and recommends policies to the university president.

BACKGROUND

            Eastern Washington University (EWU) is a public institution of higher education established by statute. RCW 28B.35.010; WAC 172-06-010(1). EWU is governed by a Board of Trustees that has full control over the institution. RCW 28B.35.100(1); RCW 28B.35.120(1). The Board’s statutory duties include, “[w]ith the assistance of the faculty,” prescribing the course of study in the University’s schools and departments. RCW 28B.35.120(3); see also

[original page 2]

WAC 172-06-020(2) (university may consult with Academic Senate when considering a change to policies or procedures). Additionally, the Board employs the university’s president as the executive officer of the institution; the president is responsible for the general supervision of the university and ensuring the laws and rules of the Board are observed. RCW 28B.35.120(2); RCW 28B.35.390; WAC 172-06-010(2).

            The Academic Senate, which you ask about, is a part of a governance body within the university known as the Faculty Organization. The Faculty Organization has its own constitution and bylaws. Policy 101-02, § 3-2. The Faculty Organization’s constitution establishes the Academic Senate as its legislative arm. Policy 301-21, § 2-1. Through the processes of the Academic Senate, the academic community articulates its formal position on matters of academic policy. Policy 101-02, § 3-1; Policy 201-01, § 4.10. According to the bylaws of the Faculty Organization, the four principal aims of the Academic Senate are:

• To formulate and recommend policies relative to university programs, degree requirements, instruction, student life and learning, and faculty welfare;
• To provide advice and counsel to the president of the university and others regarding the interpretation and implementation of policies;
• To coordinate and articulate the efforts of the faculty, administration and the Board of Trustees in the improvement of the university and its services;
• To coordinate the efforts and activities of the faculty on matters of general interest and concern in carrying out the mission of the university.

Policy 301-21, § 2-1.

            Policies recommended by the academic community become the official policies of the university “upon recommendation from the Academic Senate and approval by the university president.” Policy 201-01, § 4.10. Although the Board is entitled to delegate responsibility to governance organizations like the Faculty Organization, that delegation does not abrogate the authority or final responsibility of the president, nor the policies and authority of the Board itself. Policy 101-02, § 3-2. The Board may revoke any responsibility that it has delegated. Policy 101-02, § 3-2.

ANALYSIS

            “The [Open Public Meetings Act (OPMA)] is Washington’s comprehensive transparency statute.” Columbia Riverkeeper v. Port of Vancouver USA, 188 Wn.2d 421, 433, 395 P.3d 1031 (2017). The purpose of the OPMA is to allow the public to observe the decision-making process of public agencies in all of its stages in order to remain informed and in control “over the instruments they have created.” RCW 42.30.010; Cathcart v. Andersen, 85 Wn.2d 102, 107, 530 P.2d 313 (1975). In furtherance of that purpose, the OPMA requires the governing body of

[original page 3]

any public agency to hold its meetings open to the public unless a statutory exception applies. RCW 42.30.030.

            Before turning to your specific question regarding the application of the OPMA to the Academic Senate of EWU, we will first provide background information on three aspects of the Act germane to this analysis: the 1983 amendment to the OPMA; a 1986 Attorney General Opinion interpreting the amended legislation; and the Washington State Supreme Court’s application of that Opinion in its 2015 decision of Citizens Alliance for Property Rights Legal Fund v. San Juan County, 184 Wn.2d 428, 359 P.3d 753 (2015).

            Beginning with the statute, the OPMA applies only to the “governing body of a public agency[.]” RCW 42.30.030. The relevant portion of the statute’s “public agency” definition includes any educational institution or subagency created by or pursuant to statute. RCW 42.30.020(1). As originally enacted, “governing body” meant

the multimember board, commission, committee, council or other policy or rule-making body of a public agency.

Laws of 1971, Ex. Sess., ch. 250, § 2.

            Under this earlier version of the OPMA, whether the OPMA’s requirements applied to meetings of university faculty bodies turned on two questions: whether the body was created by or pursuant to statute and, second, whether that body exercised policy or rule-making authority. See, e.g., Cathcart, 85 Wn.2d at 104-07 (finding University of Washington School of Law had been created pursuant to statute and that the faculty body possessed governance authority); Refai v. Cent. Wash. Univ., 49 Wn. App. 1, 10-13, 742 P.2d 137 (1987) (applying similar analysis but finding faculty senate not a governing body due to a lack of policy or rule-making authority).

            In 1983, the legislature expanded the “governing body” definition. In the amended, current form, governing body means

the multimember board, commission, committee, council, or other policy or rule-making body of the public agency, or any committee thereof when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment.

Law of 1983, ch. 155, § 1 (emphasis added).

            In a previous analysis of this statute, our office explained our view that the purpose of the 1983 amendment was to extend coverage of the OPMA to those committees and groups that were not created by or pursuant to statute, ordinance, or other legislative act, but which were “created by a governing body pursuant to its executive authority[.]” AGO 1986 No. 16, at 5. This was gap-filling legislation, meant to expand the OPMA’s coverage to those committees or sub-groups a governing body might form, but which themselves were not created by statute. See AGO 1986

[original page 4]

No. 16, at 5 (describing legislative history and attempts to respond to public agencies that had organized themselves according to a committee structure).

            Thus, under the post-1983 version of the OPMA, a faculty body’s meeting may be subject to the Act in one of two ways: either because the group itself is a governing body created by statute, or because the governing body created the group.

            Following the 1983 amendment, our office was asked to interpret two of the OPMA’s new statutory terms: “committee thereof” and “acts on behalf of.” AGO 1986, No. 16, at 1. Beginning with “committee thereof,” the Opinion noted two possible definitions: it could either refer to committees composed of members of the governing body or, in the alternative, it could mean any committee brought into being by the governing body, regardless of its membership. Id. at 6-7. Based on the legislative mandate to construe the OPMA liberally, the Opinion reasoned that the broader definition should prevail and concluded that “committee thereof” refers to any group of persons the governing body creates, regardless of the composition of the committee’s membership. Id. at 7.

            Next, the Opinion considered the statutory phrase “acts on behalf of the governing body.” AGO 1986, No. 16, at 7-11. Here again the Opinion noted two possible meanings of the statute. Id. at 7-8. On the one hand, the OPMA might apply to a committee whenever it acts in the interest of the governing body, a broad understanding of “acts on behalf of” that could apply to a variety of committee actions. Id. On the other hand, the phrase could have a more circumscribed meaning and apply only when the committee “exercises actual or de facto decisionmaking authority for the governing body.” Id. at 8.

            The Opinion found that the statutory text and its legislative history supported the adoption of the narrower interpretation. AGO 1986 No. 16, at 8. Thus, under the terms of RCW 42.30.020, a committee created by the governing body falls within the ambit of the OPMA only when it exercises actual or de facto decision-making authority—not when the committee’s role is limited to providing advice or information to the governing body. Id. at 11-12.

            For nearly 30 years, the 1986 Opinion remained the only authoritative interpretation of the Act’s amended definition of “governing body.” In 2015, however, the Washington Supreme Court decided the case Citizens Alliance for Property Rights Legal Fund, which turned largely on the meanings of “committee thereof” and “acts on behalf of.” In that case, the governing body—the San Juan County Council—began the process of updating several municipal ordinances to conform with the state’s Growth Management Act. Citizens All., 184 Wn.2d at 433. To support the update process, county staff created the Critical Area Ordinances (CAO) Team—an informal group of employees that met to discuss the required updates and to provide relevant information to the Council. Id. After the team ceased meeting, the Council continued its own work on the update until it passed the new ordinances. Id. at 434.

            Following the Council’s action, a citizens group sued the Council, alleging that the staff’s team meetings were held in violation of the OPMA. Citizens All., 184 Wn.2d at 434-35. In

[original page 5]

considering whether the team had been a committee of the Council and had acted on its behalf, the Court reviewed the AGO’s prior interpretation of the terms “committee thereof” and “acts on behalf of.” Id. at 437. The Court found the Opinion persuasive and adopted its interpretation. Id. at 438. Accordingly, to prevail on their OPMA claim, the petitioners would have to demonstrate, first, that the Council took some action to create the CAO Team and, second, that the Team was authorized to exercise actual or de facto decision-making authority on the Council’s behalf. Id. at 448.

            As to the first point, the Court found no evidence in the record that the Council “authorized the creation of the CAO Team[,]” “somehow acted to bring the CAO Team into being[,]” or “later ratified the CAO Team’s formation.” Id. at 448-49. Thus, because the Council took no action to create the team, it could not have been a “committee thereof” the governing body. Id. at 449.

            On the second point, the Court found nothing in the record indicating that the CAO Team exercised actual or de facto decision-making authority on behalf of the Council. Id. at 452. Instead, to the extent the Team addressed the substance of the Council’s decisions, it was only to “gather information, conduct internal discussions, and provide information to the Council.” Id. at 451. Thus, the CAO Team’s role was consistent with that of an informal advisory committee or administrative staff support, rather than a group exercising decision-making authority. Id. In reaching this conclusion, the Court rejected the dissent’s theory that the Team may have acted on the Council’s behalf through its power or influence on the Council as “internally inconsistent, as the CAO Team could not have been acting on behalf of the Council by making a recommendation to the Council itself, particularly where the Council, not the CAO Team, was deciding what would constitute the best available science.” Id.

            Two points follow from the Citizen’s Alliance decision. First, a group of individuals is only a “committee thereof” a governing body if the latter has exercised its authority and taken some action to formally bring the former into existence. A committee formed without the governing body’s involvement is not regulated by the Act. And second, the extent to which a committee’s ultimate conclusions or work product influences the governing body is not the standard for determining if the committee acts on behalf of the governing body. Instead, the determinative issue is whether or not the committee may exercise actual or de facto decision-making authority on behalf of the governing body.

            As your letter acknowledges, EWU is a public agency, and its Board of Trustees is its governing body. Thus, the Academic Senate is only subject to the OPMA if it is a “committee thereof” and “acts on behalf of” the Board, as those terms have been interpreted in Citizens Alliance. This opinion turns to those two questions next.

[original page 6]

Is the Academic Senate a “committee thereof” the Board?

            The legislature has vested the governing authority of EWU in the Board. RCW 28B.35.100(1), .120(1). Unlike other university-level faculty bodies, there is no statute that creates EWU’s Faculty Organization or its Academic Senate, or grants governing authority to these groups. Cf. RCW 28B.20.200 (providing that faculty of the University of Washington “shall have charge of the immediate government of the institution under such rules as may be prescribed by the board of regents”). Thus, the operative question under Citizens Alliance is if the Board of EWU has exercised its executive authority to formally create or ratify the existence of the Academic Senate. Citizens All., 184 Wn.2d at 448-49.

            Based on the facts you have described in your letter, which we accept as true for the purpose of this analysis, and the university policies to which you have drawn our attention, the answer appears to be no. Although the Board has the authority to create committees, we are aware of no evidence that the Board created the Academic Senate. To the contrary, the policies of the university indicate that the Faculty Organization—of which the Academic Senate is a part—formed itself, and continues to exist as a self-created and self-governing body. See Policy 101-02, § 3-2; Policy 301-21, Appendix A – Constitution (Preamble: “We, the faculty of Eastern Washington University, in order to establish ourselves as a self-governing body, do create and establish this constitution.”).

            In Citizens Alliance, the Court reasoned that if county employees were directed to carry out a policy and they themselves created a committee to do so, it would be the employees—not the Council—who would have created that committee. Citizens All., 184 Wn.2d at 449-50. While there are obviously differences in the relationship between a county council and its staff, on the one hand, and the Board and the EWU faculty, on the other, the Court’s reasoning still applies: if the university’s faculty created the Faculty Organization and through it the Academic Senate to carry out the function of articulating formal faculty positions on academic matters, then it is the faculty, not the Board, that has created the Academic Senate. Under the reasoning in Citizens Alliance, even if the Board delegated to the Academic Senate the tasks of recommending academic policies for adoption by the Board and the president, it does not follow that the Board has created the Senate.

            This conclusion finds some support in the legislative history to the Act’s 1983 amendment. As we noted above, an animating concern behind the expanded definition of “governing body” was to address a situation where the executive board of a public agency had organized itself into committees and was conducting a substantial amount of its business through that committee structure. See AGO 1986 No. 16, at 5 (discussing remarks by a sponsor of the amended legislation (citing Senate Journal, 48th Leg. (1983), at 880)). Because those board-created committees were not themselves created by or pursuant to statute, the agency was able to avoid the Act’s regulation simply by delegating its work to its committees. See AGO 1986 No. 16, at 5.

            But here, the Academic Senate does not serve as a committee through which the EWU Board conducts its business. The Faculty Organization, of which the Senate is a part, is a self-

[original page 7]

created, self-governing entity which, through the Senate, adopts policies that the Board considers. As far as we can tell, there is no overlap in membership between the Board and the Academic Senate. Based on the concern the 1983 amendment was meant to address, it is unlikely the legislature intended the Act to apply to a faculty body like the Academic Senate, which the Board had no role in creating.

            Moreover, when the legislature has sought to apply the OPMA’s requirements to self-governing university bodies, it has done so expressly. For example, in RCW 42.30.200, the legislature subjected to the OPMA any multimember student board that is the governing body of the recognized student association on a given campus. As you point out in your letter, this means that the student association of EWU—the Associated Students of Eastern Washington University—must comply with the OPMA.

            When the legislature originally proposed the law that would become RCW 42.30.200, it applied the OPMA to any university-level, policy-recommending body, with the exception of tenure review committees, if the body had at least one student representative. Laws of 1980, ch. 49, § 1. But the governor vetoed that portion of the legislation, explaining that while extending the Act’s application to all policy-recommending bodies in higher education might be unobjectionable, the governor would not agree to only single out bodies with student members. Laws of 1980, ch. 49, § 1.

            In the 41 years since RCW 42.30.200 was passed into law, the legislature has taken no action to expand its scope beyond student associations like the Associated Students of EWU to other policy-recommending bodies—like the Academic Senate. While this legislative history and subsequent inaction is not determinative, it suggests that the legislature believed that action needed to be taken to expand RCW 42.30 to student associations, but declined to take that step with regard to faculty bodies like the Academic Senate.

            The legislature has mandated the liberal construction of RCW 42.30. RCW 42.30.910. If two interpretations are consistent with the text and purpose of the statute, the broader interpretation of the statutory terms should hold sway. But here, based on the interpretation of “committee thereof” set out in our 1986 Opinion and accepted by the Supreme Court in Citizens Alliance, it is difficult to imagine even a broad reading of the statute applying to a committee that was created independently of the governing body.

            To reiterate, this conclusion is based upon the facts as they have been provided to us and is specific to the circumstances at EWU. If it were the case that the Board has taken some formal action to create or ratify the Academic Senate’s existence, then our analysis would necessarily be different. But in the absence of that information, we conclude that the Academic Senate is not a “committee thereof” the Board.

[original page 8]

If the Academic Senate is a committee as defined by the OPMA, does it act on behalf of the Board?

            Even if the Academic Senate were considered a “committee thereof” the Board, the Senate would nevertheless only be subject to the OPMA’s requirements if it were to take one of four actions specified in statute: act on behalf of the governing body, conduct hearings, or take testimony or public comment.^[1] RCW 42.30.020(2). Within the facts that have been provided to us, there is nothing to indicate that the Academic Senate conducts hearings or takes testimony or public comment. Thus, the sole issue is whether the Academic Senate acts on behalf of the Board by exercising “actual or de facto decision-making authority on behalf of the governing body.” Citizens All., 184 Wn.2d at 444.

            As the governing body of EWU, the Board may delegate its authority to the university president or the president’s designees. RCW 28B.10.528. Both your letter and the policies you refer us to indicate that the Board has delegated to the university president the authority to adopt academic policy changes recommended by the Academic Senate. Your letter and the university’s policies also speak broadly about the critical role the Senate has in EWU’s shared governance model, and you specifically note that the Senate’s recommended academic policies are almost always adopted by the university president.

            Nevertheless, we ultimately conclude that the Academic Senate does not act on behalf of the Board in light of how that statutory phrase was interpreted in Citizen’s Alliance. Under that analysis, a committee cannot act on behalf of a governing body if the committee is making proposals that the governing body ultimately decides. Citizens All., 184 Wn.2d at 451. In that case, even though the CAO Team was responsible for synthesizing the best available science, the Council was the body responsible for deciding what in fact constituted the best available science. Because the authority to make that decision rested with the Council, the CAO Team could not have had decision-making authority.

            Similarly here, while the Academic Senate approves academic policies, that approval is subject to the president’s decision of whether or not to adopt them as official university polices. Because the Senate’s “approval” is subject to the president’s decision to adopt or reject them, the Senate’s actions are ultimately recommendations, not final decisions. And under the rationale of Citizen’s Alliance, the Senate cannot possess decision-making authority if that authority ultimately belongs to the president and the Board.

            Your letter does state that the president rarely rejects the academic policies proposed by the Academic Senate. While that supports the view that, as a practical matter, the Senate may exert

[original page 9]

power and influence or produce an effect on the decision-making process, the majority of the Court in Citizen’s Alliance specifically rejected using that as the standard for deciding whether the OPMA applies. Compare Citizen’s All., 184 Wn.2d at 457-58 (Yu, J., concurring in part and dissenting in part) (finding a factual question existed as to the extent of the CAO Team’s influence on the Council, regardless of whether the Team acted as the decision-maker), with id. at 451-52 (majority opinion) (rejecting concurrence/dissent’s power-and-influence standard as “vague” and “untenable” and concluding that it would be “internally inconsistent” to find that a team advising the Council was acting on its behalf). Thus, even if the Senate’s actions influence the decision-making process, it does not follow that the Senate is the body making the decision.

            The conclusion that EWU’s Academic Senate is not acting on behalf of the Board is consistent with two prior Washington appellate cases regarding the application of the OPMA to faculty bodies: Cathcart and Refai.

            Cathcart involved the faculty of the University of Washington’s School of Law, which had a practice of governing the School’s affairs through closed meetings. Cathcart, 85 Wn.2d at 103. When students sought to attend the meetings and were rebuffed, they sued, claiming the faculty’s practice violated the OPMA. Id.

            The Washington Supreme Court decided Cathcart based on the pre-1983 version of the OPMA, and so it did not examine the terms “committee thereof” and “acts on behalf of,” but instead analyzed whether the faculty was created pursuant to a statute and, if so, if it exercised policy or rulemaking authority. Cathcart, 85 Wn.2d at 104-06. The Cathcart Court found the faculty possessed this authority and was therefore a governing body subject to the OPMA. Id. at 107-08. The Court reached this conclusion in part because the faculty was statutorily authorized to “have charge of the immediate government of the institution under such rules as may be prescribed by the board of regents.” Id. at 105-06 (quoting RCW 28B.20.200). Additionally, the de facto rule and policy-making power the faculty historically exercised under that statute had been formalized by an official resolution of the university Board, as well as in an executive order issued by the university president. Id. at 106-07. As a result of these formal delegations of authority, the faculty came “to exercise considerable power over the governing of the school.” Id. at 106.

            Even though in some “abstract hypothetical sense” the faculty’s decisions were subject to rules of the Board, the Court found the Board adopted faculty actions “almost as a matter of course.” Id. at 107. Given the formal and de facto rule and policy-making authority of the faculty, the Court found it was a “governing body” under the OPMA. Id.

            While your letter acknowledges that the president rarely decides to reject academic policies approved by the Academic Senate, the actual decision-making authority of the law school faculty in Cathcart is sufficient to distinguish it from the role of the Academic Senate at EWU. Unlike the law school faculty in Cathcart, we are aware of no accepted practice, board resolution, or executive order that authorizes the Academic Senate to make unilateral decisions outside the scope of its self-governance.

[original page 10]

            In the second case, Refai, the Court of Appeals considered a challenge brought under the OPMA to closed meetings held by Central Washington University’s Academic Senate Executive Committee (SEC). Refai, 49 Wn. App. at 6. In that case, the university president declared a state of financial exigency following a series of budget reductions by the state legislature. Id. at 3. Pursuant to the faculty code, the president asked the Faculty SEC to evaluate the declaration and, if the SEC agreed that cause for faculty layoffs existed, to prepare a layoff plan. Id.

            The SEC concurred with the declaration and, in a series of closed meetings, developed a layoff plan. Id. at 3-4. The plan was submitted to the university president; after modifications by the president and further revisions by the SEC, the president adopted the SEC’s final proposal. Id. at 4-5. According to the terms of the plan, several faculty members were terminated, and one professor sued, alleging that the SEC’s closed meetings violated the OPMA. Id. at 5-6.

            Like the Supreme Court did in Cathcart, the Court of Appeals decided Refai based on the pre-1983 version of the OPMA, and was therefore concerned with whether the SEC was a governing body because it exercised rule or policy-making authority. Refai, 49 Wn. App. at 12. The court decided it did not: although the SEC was charged with developing a layoff plan, the proposal was subject to the president’s modifications and ultimate approval. Id. at 13. Because the SEC itself did not possess the final decision-making power over the plan, it was not a governing body. Id.

            In reaching this holding, the court did note that, while the case was decided under the pre-1983 version of the OPMA, “[a] stronger case can be made under the current definition of ‘governing body’ in RCW 42.30.020(2) for the SEC to be subject to [the OPMA.]” Id. at 14 n.5. The court then quoted the expanded definition of governing body. Id.

            The court did not elaborate on why the amendment created a stronger case for applying the OPMA to the meetings of the SEC. If the SEC were a committee created by the governing body, to fall within the ambit of the OPMA, the SEC would still need to have acted on behalf of the governing body. And if no rule or policy-making authority had been delegated to the SEC, it is not obvious how the SEC would have been acting on the Board’s behalf, at least as that phrase has been interpreted in Citizen’s Alliance. Although there might be a situation where a committee lacks policy or rule-making authority but possesses actual or de facto decision-making authority, under the facts of Refai, the SEC had neither. Cf. Citizens All. for Prop. Rts. Legal Fund v. San Juan County, 181 Wn. App. 538, 549-50, 326 P.3d 730 (2014), aff’d, 184 Wn.2d 428, 359 P.3d 753 (2015) (noting that while the argument that a body might possess de facto decision-making authority without being designated as a policy or rule-making body did not lack merit, it was not supported by the facts underlying Citizen’s Alliance).

            The upshot of Refai is that, while the holding is based on the construction of different statutory terms, its conclusion is consistent with this Opinion. Where a faculty body approves a proposal and submits it to a university president for a final decision, it is the president, not the

[original page 11]

faculty, who has the decision-making power. And if the faculty does not have actual or de facto decision-making authority, then it is not acting on behalf of the governing body.

            Refai and Cathcart were decided on the basis of different statutory language, and so the holding of neither case is dispositive here. But, to the extent the cases discuss the circumstances under which faculty bodies may possess policy or rule-making authority, they support the view that EWU’s Academic Senate does not exercise actual or de facto decision-making authority.

            Based on the application of the factual circumstances specific to EWU to RCW 42.30.020’s definition of governing body as construed by the Supreme Court, we conclude that the Academic Senate does not act on the Board’s behalf in proposing academic policies subject to the president’s approval, and so the OPMA’s requirements do not apply to the Senate’s meetings.

            We trust that the foregoing will be useful to you.

ROBERT W. FERGUSON
   Attorney General

s/ Michael Bradley
MICHAEL BRADLEY
   Assistant Attorney General

wro