Washington State's Open Public Meetings Act mandates that the public's business be conducted in public. To make sure this occurs, in a three-member commission, two commissioners are not allowed to communicate in person or by email about the organization's business. In a five-person commission, this would mean three people cannot talk or email outside of a meeting. In other words, since it takes two votes to pass something in a three-person commission, two people aren't allowed to decide or discuss the commission's business outside of a public meeting.
So did Public Hospital District Commissioners J. Michael Edwards and Mark Schwinge violate the OPMA when they discussed the appointments of Rebecca Smith and Warren Appleton outside of last week's meeting?
There were two vacancies on the commission as the result of resignations by Bill Williams and Monica Harrington. So the Public Hospital District was down to only three members. It seems logical that since the two men constituted a majority of the commission, that meeting out of sight of the public would be a clear violation of the spirit of the OPMA.
Today, the Hospital District sent out a release saying:
The OPMA’s rules rest on quorum requirements. No board may meet as a quorum without notifying the public. A quorum simply means that commissioners may transact business on behalf of the public. A three-person board requires only two members to act as a board, whereas a five-person board requires three people – regardless of any vacancies. Whether a five-person board is short on members or not, it still functions like a five-person board in requiring three commissioners to transact on behalf of the public. There are special rules for a board that does not have sufficient members to form a quorum.
So if that's true, that would mean the appointments of Smith and Appleton are invalid. Since on a five-member commission it takes three votes to approve any appointment. To fill the first vacancy, Edwards and Schwinge voted for Smith. Commissioner Anna Lisa Lindstrum cast her vote for former commissioner Barbara Sharp.
It would be contradictory to say the hospital district operates under the five-person rules while Schwinge and Edwards are discussing hospital district business outside of the public meetings, but operates like a three-person board when selecting people to fill the vacancies.