Bob Ferguson
Other LanguagesAGO 2014 No. 7 -
Attorney General Bob Ferguson
COUNTIES—COUNTY COMMISSIONER—LEGISLATIVE AUTHORITY—PUBLIC MEETINGS—Whether A County Legislative Authority Can Meet Outside The County To Hold A Joint Meeting With Another County’s Legislative Authority
A county legislative authority may not meet outside of its county in order to hold a joint meeting with the legislative authority of another county unless a specific exception applies, but the legislative authorities may conduct joint meetings using video conferencing.
November 14, 2014
| The Honorable Shawn P. Sant Franklin County Prosecutor 1016 N 4th Avenue Pasco, WA 99301 |
Cite As: AGO 2014 No. 7 |
Dear Prosecutor Sant:
By letter previously acknowledged, you have requested our opinion on the following questions, which we have paraphrased slightly for clarity:
1. Can the legislative authority of one county meet outside its borders, and within another county’s borders, to discuss joint bi-county projects?
2. Can the legislative authorities of two counties conduct regular joint meetings utilizing video conferencing, while each legislative authority is physically located within its county seat?
BRIEF ANSWER
1. No, unless a specific statutory exception allows such a meeting. RCW 36.32.080 makes clear that regular meetings of county commissioners to transact any county business must be held at the county seat, while RCW 36.32.090 makes clear that special meetings may be held at other locations but must still occur within county borders. A few statutes allow meetings in other counties as to specific subjects, but in the absence of such an exception, any county business must be transacted at a meeting within the county borders. The legislature could, of course, allow joint meetings of county legislative authorities in more circumstances, but it has not yet done so.
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2. Yes. There is no prohibition against conducting joint meetings using video conferencing. Although there is no statute or case directly on point, the Washington Supreme Court has held that so long as there is no express prohibition of an act, county commissioners have implicit authority in the fulfillment of their statutory duties, even without a specific statutory grant of authority in every instance. We find this use of technology to be similar to the rulings by appellate courts that approve the use of video conferencing when it otherwise promotes efficiency.
BACKGROUND
Like many adjacent counties, neighboring Benton and Franklin Counties face several shared issues and are involved in several bi-county collaborations. The county boards of commissioners would like to meet jointly to discuss their joint endeavors, but such meetings in person would necessitate one of the boards meeting outside of its respective county.
ANALYSIS
1. Can the legislative authority of one county meet outside its borders, and within another county’s borders, to discuss joint bi-county projects?
RCW 36.32.080 requires that regular meetings of a county’s legislative authority be held at the county seat: “The county legislative authority of each county shall hold regular meetings at the county seat to transact any business required or permitted by law.” Meanwhile, RCW 36.32.090 provides that special meetings may be conducted outside of the county seat, but these meetings still must be within the county and may only be held at a different location when there is something on the agenda that is of unique interest or concern to that portion of the county where the special meeting is held.[1]
Read together, these statutes plainly require that a county’s legislative authority meet within the county, absent a specific exception. See, e.g., Lake v. Woodcreek Homeowners Ass’n, 169 Wn.2d 516, 526, 243 P.3d 1283 (2010) (“Plain meaning ‘is to be discerned from the ordinary meaning of the language at issue, the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole.’” (quoting State v. Engel, 166 Wn.2d 572, 578, 210 P.3d 1007 (2009))). RCW 36.32.080
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makes clear that “regular meetings . . . to transact any business required or permitted by law” shall occur “at the county seat.” One might argue that RCW 36.32.080’s reference to “regular meetings” suggests some room for an irregular meeting to be held elsewhere, potentially even outside the county, but RCW 36.32.090 makes clear that special meetings must also be held within the county. By limiting special meetings to other locations “within the county” (RCW 36.32.090), the legislature has clearly expressed the intent that all meetings that transact any county business occur within the county, except where otherwise specifically provided for.
Even if some ambiguity could be alleged here, a common tool for determining legislative intent is the maxim expressio unius est exclusio alterius, that to express one thing in a statute implies the exclusion of the other. Adams v. King County, 164 Wn.2d 640, 650, 192 P.3d 891 (2008). Here, special meetings within the county are specifically provided for, but special meetings outside of the county are not. See RCW 36.32.090. In this context, the omission of authority to hold meetings outside the county borders may be interpreted as an exclusion of that authority.
We also considered the statutes that authorize or contemplate that counties will work together on various projects. In some instances, the relevant statutes specifically provide for joint county meetings, with one county’s commissioners traveling to another county for the meeting. For example, RCW 86.13.050 provides a very specific procedure for calling a meeting of two counties in either county to pursue flood control, and RCW 27.12.100(2) provides for two or more counties to meet in a joint session to establish an intercounty library district. Since these situations are specifically provided for by statute, they are exceptions to the otherwise general rule that all county meetings take place in the county, and further confirm our reasoning.
There are other instances where joint action is contemplated without specific provision for joint meetings. For example, RCW 36.32.280 authorizes counties to work jointly to regulate watercourses and RCW 36.32.335 and .340 require coordination between counties of administrative programs. To accomplish these ends and any others that suggest joint action with another governing body, the Interlocal Cooperation Act provides a method for public agencies to enter into agreements for such joint action. See RCW 39.34. These statutes, therefore, provide other methods to accomplish joint action with other counties and allow a county to act without violating the requirement that meetings be held within the county under RCW 36.32.080.
Finally, we note that our opinion is limited to “meetings” during which “any business required or permitted” by law takes place. Our opinion does not mean that county commissioners are prohibited from attending meetings of other county legislative authorities. This office has previously advised that members of a governing body may
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attend a third party’s meeting (including a meeting of another governing body), even if the attendees would constitute a quorum of the visiting governing body, without converting that gathering into a meeting under the Open Public Meetings Act (OPMA), RCW 42.30, so long as no action is taken by the visiting governing body. AGO 2006 No. 6; see also Loeffelholz v. Citizens for Leaders With Ethics & Accountability Now (C.L.E.A.N.), 119 Wn. App. 665, 701, 82 P.3d 1199 (2004) (OPMA does not apply to meeting if no business is transacted); In re Recall of Roberts, 115 Wn.2d 551, 553-54, 799 P.2d 734 (1990) (members not prohibited from gathering so long as no action is taken). The critical question for compliance with the OPMA is whether there will be “transaction of the official business of the agency.” See RCW 42.30.020(3) (defining “action” for meetings under the OPMA). It bears mentioning that, as we cautioned in that previous opinion, “action” under the OPMA also includes the “receipt of public testimony.” RCW 42.30.020(3). Therefore, commissioners would need to consider whether they are receiving public testimony when attending the meeting of another governing body.
2. Can the legislative authorities of two counties conduct regular joint meetings utilizing video conferencing, while each legislative authority is physically located within its county seat?
The use of video conferencing would allow joint meetings of two county legislative authorities while maintaining compliance with RCW 36.32.080. While there is no authority directly on point, there is also no express prohibition regarding video conferencing during meetings of county legislative authorities. The Washington Supreme Court has found that county legislative authorities have the implied authority necessary to carry out their express statutory duties, so long as that authority is not otherwise limited in some way. State ex rel. Becker v. Wiley, 16 Wn.2d 340, 350-51, 133 P.2d 507 (1943). A legislative authority would therefore have the ability to utilize video conferencing to meet with its counterpart in another county, as this would further its ability to carry out its statutory duties while complying with the requirement that business meetings occur within county borders.
The Court’s decision in Wiley offers an example of approving county commissioners’ authority to act even when no specific provision expressly allowed the action taken. Wiley, 16 Wn.2d at 349-50. In Wiley, a specific provision required the county commissioners to provide an office for the prosecuting attorney in the courthouse, but the commissioners had also provided another office for the prosecuting attorney at a different location. Id. at 343-44. The Court looked for any limitation on their power to do so. Id. at 350-52. Since nothing expressly limited their authority in the provision of this office, the Court concluded it was within the commissioners’ authority to provide the
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additional office. Id. at 351. This conclusion was in line with previous cases finding commissioners have implied authority to carry out their duties, even when there was no express grant of specific authority in each instance. Id. at 349. [2]
We are also persuaded by analogy to judicial powers to use video conferencing when personal appearance would otherwise be inconvenient. A recently amended court rule, CR 43(a)(1), expressly allows witness testimony to be transmitted from another location when there is good cause in compelling circumstances, so long as appropriate safeguards are in place. As a matter of first impression, the Court of Appeals approved the use of testimony via Skype when the witness was in Spain and would suffer significant inconvenience if forced to appear live. In re Marriage of Swaka, 179 Wn. App. 549, 557, 319 P.3d 69 (2014). The Swaka court reviewed federal case law on point and determined that the decision to allow or deny such testimony was within the trial court’s discretion. Id. at 555-56.
The Court of Appeals has also encouraged the general use of modern technology, albeit in dicta. In Clausing v. State, 90 Wn. App. 863, 955 P.2d 394 (1998), a doctor challenged the reviewing board’s use of telephone conferencing in conducting its deliberations on his license. In rejecting his arguments, the court approved of the use of modern technology:
In this modern technological era, there are many expedient methods to conduct business. For example, video conferencing, internet conferencing, and telephone conference calls are all means to conduct transactions in an economical and efficient manner. These methods allow persons to be “present” to one another without the demands often required to achieve physical presence.
Clausing, 90 Wn. App. at 874 n.6. The court described this expediency as a sound public policy reason to reject the doctor’s challenge to the use of telephone conferencing. It also furthered the presiding officers’ ability to consider accessibility, efficiency, and economy as required by rule. Id. These same considerations support the use of video conferencing here.
If it is reasonable for courts and adjudicative agencies to use video or telephone conferences to accomplish their purposes, it is equally reasonable for county legislative authorities to use modern technology to allow county legislative authorities to conduct
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joint meetings while adhering to the requirements of RCW 36.32.080 and .090. See Wiley, 16 Wn.2d at 348 (recognizing many of the acts of county commissioners require the exercise of discretion). This allows both the county commissioners and members of the public the ability to be physically present in the county, as required by statute, while also benefitting from the “presence” of people in neighboring counties. The use of video conferencing is, therefore, within the general power and ability to exercise discretion given to county commissioners.
We trust that the foregoing will be useful to you.
ROBERT W. FERGUSON
Attorney General
KAYLYNN WHAT
Assistant Attorney General
wros
The county legislative authority of each county may hold special meetings to transact the business of the county. Notice of a special meeting shall be made as provided in RCW 42.30.080. A special meeting may be held outside of the county seat at any location within the county if the agenda item or items are of unique interest or concern to the citizens of the portion of the county in which the special meeting is to be held.
[2] The Wiley Court referred to a previous case where the appointment of an agent by the county commissioners was approved of despite the lack of an express statutory grant of this power. Wiley, 16 Wn.2d at 348-49 (discussing State ex rel. Whitney v. Friars, 10 Wash. 348, 352, 39 P. 104 (1894)). County commissioners had also been affirmed in their power to allow the prosecuting attorney to hire an expert witness to assist in a case, even though no statute specifically granted this authority. Id. at 349-50 (discussing Williamson v. Snohomish County, 64 Wash. 233, 237, 116 P. 675 (1911)).