### IN THE SUPREME COURT OF THE STATE OF WASHINGTON

CITIZENSALLIANCE FOR PROPERTY RIGHTS ) LEGAL FUND, a \1\/ashington nonprofit ) corporation, ) No. 90500-2 ) Petitioner, ) En Bane ) V. ) " ) Filed 

## (JCT 0 1IW15 SAN JUAN COUNTY, a Washington municipal ) corporation, and SAN JUAN COUNTY CRITICAL ) AREAS ORDINANCE/ SHORELINE MASTER ) PROGRAM IMPLEMENTATION COMMITTEE, a ) subcommittee ofthe San Juan County Council, ) and its Members RICHARD FRALICK, PATTY )

. MILLER, and LOVEL PRATT, ) ) Respondents. ) ) WIGGINS, J.-ln this case, the Citizens Alliance for Property Rights Legal Fund (CAPR) seeks to invalidate several ordinances passed by the governing council of San Juan County (County), alleging violations of Washington's Open Public Meetings Act of 1971, chapter 42.30 RCW (OPMA). Specifically, CAPR asserts that four ordinances passed as part of a state-mandated update of the County's critical area ordinances (CAO) should be voided because the ordinances had first been discussed by an informal group of county officials and employees (CAO Team) in meetings that did not comply with the OPMA. We reject CAPR'sCitizensAlliance forProperty Rights Legal Fund v. San Juan County, No. 90500-2 arguments because (1) none ofthe CAO team meetings constituted "meetings" of the San Juan County Council (Council) under the OPMA, (2) the CAO Team itself
was not a "committee" ofthe Council, and (3) the CAO Team never acted on behalf ofthe Council. BACKGROUND At all times relevant to this appeal, the County operated under a home rule charter that vested legislative functions in the Council, consisting of six voting members. SAN JUAN COUNTY HOME RULE CHARTER art. 2, 

### §§ 2.1 0, 2.11, 2.30(1 ). The charter specified that the Council cannot act without the affirmative vote offour of its members. 

### /d. 

### § 2.40(3). Further, the charter placed all administrative and executive functions under the purview of a county administrator hired by the Council. 

### /d. 

### §§ 3.41, 3.43. During the relevant time period, Pete Rose served as county administrator. In 2010, the County began the process of updating its CAO as required by the Growth Management Act (GMA), chapter 36.70A RCW. The County had initiated the CAO update process on two prior occasions but had failed to pass the required update both times. Bythe time the County initiated the third effortto update the CAO, the required update was already four years overdue. The CAO Team appears to have been an informal group that met occasionally to discuss how to implement the CAO update. The informal nature of the team is reflected by the near-complete absence of official documents referencing the team or its work. For example, the record provides few clues as to how the CAO Team came into existence. It does not appear that it was created

2Citizens Alliance forProperty Rights Legal Fund v. San Juan County, No. 90500-2 through a formal legal instrument such as a legislative resolution or an executive directive. Likewise, no documents in the record indicate how the members of the GAO Team were chosen-in fact, none of the documents in the record suggests that the GAO Team even had an official list of members. The record also does not contain any documents indicating that the GAO Team had any formal purpose, list of responsibilities, or official relationship to other county agencies. This informal group met approximately 26 times between July 2010 and February 2012. The GAO Team did not keep attendance records, and the record provides little information on who attended many of the individual team meetings. In a response to an interrogatory, the County stated that 10 individuals attended at least one GAO team meeting: Pete Rose, the county administrator; Jon Cain, a deputy prosecutor from the San Juan County Prosecuting Attorney's Office; Paul Adamus, a consultant; Shireene Hale, Janice Biletnikoff, Colin Maycock, and Rene Beliveau, all members of the County's planning staff; and three members of the Council-Richard Fralick, Lovel Pratt, and Patty Miller. CAPR does not allege, and the record does not indicate, thatany members ofthe Council besides Fralick, Pratt, and Miller attended any GAO team meetings. During the period thatthe GAO Team was meeting, the Council continued its work related to the GAO update. The record indicates that the Council held 70 different meetings, workshops, hearings, or joint hearings regarding the GAO update between 2010 and 2012. On April 26, 2012, San Juan County Prosecuting Attorney Randall Gaylord submitted a memorandum to the Council suggesting that all gatherings involving at least three members of the Council should comply with


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### v: San Juan County, No. 90500-2
the OPMA. Following this memorandum, the CAO Team did not hold any further meetings. After the CAO Team ceased meeting, the Council met over 25 times and continued to hold public discussions, hearings, and readings ofthe CAO update. In December 2012, the Council completed the CAO update process by adopting the four ordinances that CAPR now seeks to invalidate. All four of these ordinances were passed by a five to one vote ofthe Council. None ofthe adopted ordinances refers to the work or recommendations ofthe CAO Team. Shortly before the ordinances were adopted, CAPR filed a complaint against the County, the CAO Team, and the three council members who attended CAO team meetings-Fralick, Miller, and Pratt. After discovery was completed, the County moved for summary judgment. The trial court granted the motion and denied CAPR's motion for reconsideration. CAPR appealed. The Court ofAppeals affirmed the trial court's dismissal of CAPR's complaint, concluding that the OPMA did not apply to the CAO team meetings because CAPR submitted no evidence that a majority of the Council attended CAO team meetings or that the CAO Team acted "on behalf of" the Council, as required by the OPMA. See CitizensAll. forProp. Rights LegalFund

### v. San Juan County, 181 Wn. App. 538, 545, 326 P.3d 730, review granted, 181 Wn.2d 1015 (2014). STANDARD OF REVIEW We review grants of summary judgment de novo, engaging in the same inquiry as the trial court. Amalgamated Transit Union Local587

### v. State, 142Wn.2d

4CitizensAlliance forProperty Rights Legal Fund

### v. San Juan County, No. 90500-2 183, 206, 11 P.3d 762, 27 P.3d 608 (2000). Summary judgment is proper where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). Construction of a statute is a question of law that we review de novo. State 

## v. Ammons, 136 Wn.2d 453, 456, 963 P.2d 812 (1998). On matters of statutory interpretation, our "fundamental objective is to ascertain and carry out the Legislature's intent." Oep't ofEcology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002). "[l]fthe statute's meaning is plain on its face, then the court must give effect to that plain meaning as an expression of legislative intent." 

### /d. at 9-10. When determining a statute's plain meaning, we consider "the ordinary meaning of words, the basic rules of grammar, and the statutory context to conclude what the legislature has provided for in the statute and related statutes." In re Forfeiture of One 1970 Chevrolet Chevelle, 166 Wn.2d 834,838-39,215 P.3d 166 (2009). We consider other matters, including legislative history, if "the statute remains susceptible to more than one reasonable meaning" after completing this plainmeaning analysis. Campbell

### &Gwinn, 146 Wn.2d at 12. ANALYSIS We conclude that the OPMA did not apply to the CAO team meetings. The OPMA applies only to meetings of "'[g]overning bod[ies],"' a term that applies both to legislative entities such as the Council and "committee[s] thereof" when the committee "acts on behalf of" the legislative entity. RCW 42.30.020(2). Here, none of the CAO team meetings constituted meetings of the Council itself under the OPMA because none of the meetings included a majority of council members.

5CitizensAlliance forProperty Rights Legal Fund

### v. San Juan County, No. 90500-2 Moreover, the CAO Team was not a "committee thereof" with respect to the Council because CAPR produced no evidence indicating that the Council created the CAO Team. The CAO Team also never "acted on behalf of" the Council and thus could not have constituted a "governing body" under the OPMA even if the Council had created it. We therefore affirm the dismissal of CAPR's complaint. I. Statutory Construction RCW 42.30.030 sets forth the OPMA's prohibition against closed public meetings: All meetings of the governing bodyof 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. (Emphasis added.) Another section of the OPMA provides the definitions of the above-emphasized terms: (2) "Governing body" means the multimember board, commission, committee, council, or other policy or rule-making body ofa public agency, or any committee thereofwhen the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment.
(4) "Meeting" means meetings at which action is taken. RCW 42.30.020 (emphasis added). Unfortunately, while subsection (4) purports to define "meeting," it actually does no more than specify when meetings are subject to the OPMAwithout clarifying what a "meeting" itself is. The OPMA also does not provide any guidance on the meanings of "committee thereof" and "acts on behalf of" as those terms are used in subsection (2)'s definition of "governing body."

6CitizensAlliance forProperty Rights Legal Fund

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In giving meaning to an undefined term, we "considerthe statute as awhole and provide such meaning to the term as is in harmony with other statutory provisions." Heinsma 

## v. City of Vancouver, 144 Wn.2d 556, 564, 29 P.3d 709 (2001 ). Though undefined terms in a statute are given their common law or ordinary meanings, see State 

### v. Chester, 133 Wn.2d 15, 22, 940 P.2d 1374 (1997), the words "must be read in the context of the statute in which they appear, not in isolation or subject to all possible meanings found in a dictionary." State v. Lilyblad, 163 Wn.2d 1, 9, 177 P.3d 686 (2008). "Ultimately, in resolving a question of statutory construction, this court will adopt the interpretation which best advances the legislative purpose." Bennett 

### v. Hardy, 113 Wn.2d 912, 928, 784 P.2d 1258 (1990). The attorney general's office (AGO) construed both "committee thereof" and "acts on behalf of" in an opinion issued in 1986, three years after the legislature amended the OPMA by adding those terms to the definition of "governing party." See 1986 Op. Att'y Gen. No. 16, http://www.atg.wa.gov/ago-opinions/applicabilityopen-public-meetings-act-committee·-governing-body. "Although not controlling, attorney general opinions are entitled to great weight." Thurston County

### v. City of Olympia, 151 Wn.2d 171, 177, 86 P.3d 151 (2004). This is particularly true where the AGO issues an opinion shortly after the passage of legislation and where the legislature fails to amend the statute in response to the opinion: [W]e presume that the legislature is aware of formal opinions issued by the attorney general and afailure to amend the statute in response to the formal opinion may, in appropriate circumstances, be treated as a form of legislative acquiescence in that interpretation. The weight ofthis factor increases over time and decreases where the opinion is

7CitizensAlliance forPropertyRights Legal Fund

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inconsistent with previous formal op1n1ons, administrative interpretations, or court opinions

.... [W]here the opinion is issued in close temporal proximity to the passage of the statute in question, it may shed light on the intent of the legislature, keeping in mind, of course, that the attorney general is a member of a separate branch of government. Five Corners Family Farmers 

### v. State, 173 Wn.2d 296, 308, 268 P.3d 892 (2011) (citations omitted). Here, theAGO issued its opinion construing "committee thereof" and "acts on behalf of" shortly after those terms were added to the definition of "governing body" and the legislature has not amended or clarified the statutory definitions in the three decades since the opinion was issued. Because of these factors and because we find the 1986 AGO opinion persuasive in its reasoning, we adopt the interpretations as set forth in that opinion. See 1986Att'y Gen. Op. No. 16. The parties also dispute the meaning of "meeting" as applied to the County Council. This dispute focuses on two issues: whether a "meeting" of a governing body requires that a majority of the governing body be present and under what circumstances a serialized sequence of phone calls and e-mails can constitute a "meeting" under the OPMA. We examine and construe each ofthe disputed terms in turn. 

### A. ((Committee thereof' A committee of a governing body may itself be a governing body if it is a "committee thereof." The 1986 AGO opinion reasoned that the word "thereof" referred to any committee that the governing body creates: The term "thereof" is defined as: "1: ofthat: of it

... 2: from that cause: from that particular: Therefrom

..." Webster's Third New
8CitizensAlliance forProperty Rights Legal Fund v. San Juan County, No. 90500-2
International Dictionary 2372 (1971). There are two definitions of the word "thereof." The first definition would seem to limit the composition of committees to members of the governing body. However, the second definition includes any committee the governing body brings into being. We find nothing in the language of the Act or its legislative history to indicate that the Legislature intended the more restrictive first definition.Also, the policy oftheAct and the legislative declaration that the statute be liberally construed support our application of the broader definition ofthe word "thereof." 1986 Op. Att'y Gen. No. 16, at 6-7 (emphasis added) (alterations in original). We agree. Consequently, the key to assessing whether an entity is a "committee thereof' with respect to a particular governing body is not whether the

_ entity's members are members ofthe governing body but, rather, whetherthe entity
was "created by [the] governing body pursuantto its executive authority

...."/d. at 5. Thus, a committee may be composed "solely ofa minority ofthe members ofthe governing body" and even "of nonmembers ofthe governing body" as long as the governing body created the committee. 

### /d. at 6. 1 B. "Acts on behalfof" The OPMA applies to committees only under certain circumstancesspecifically, "when the committee acts on behalf of the governing body, conducts hearings, ortakes testimony or public comment." RCW 42.30.020(2). We focus on the meaning ofthe phrase "acts on behalf of" because CAPR has not alleged that

1 The 1986 AGO opinion does not address the issue of whether a group can be a "committeethereof" with respectto a governing body ifthe group consists entirely or mostly of a governing body's members but was notcreated or authorized by the governing body as a whole. We need not reach that question in this case because the record shows that the participants in CAO team meetings consisted primarily of nonmembers ofthe Council.

9CitizensAlliance forProperty Rights LegalFund v. San Juan County, No. 90500-2
the CAO Team engaged in any of the other three enumerated activities. Here, we agree with the 1986 AGO opinion that "acts on behalf of" refers to situations where a committee exercises actual or de facto decision-making authority for a governing body. This construction is supported by two fundamental principles of statutory construction: the use ofdifferent terms in astatute suggests a different meaning for each term and all language in a statute must be given effect. "When the legislature uses two different terms in the same statute, courts presume the legislature intends the terms to have different meanings." Densley

## v. Dep'tofRet. Sys., 162 Wn.2d 210, 219, 173 P.3d 885 (2007). Here, the legislature used different words to describe when committees are subject to the OPMA (when the committee "acts on behalf of the governing body") than when it specified that meetings are subject to the OPMA (when "action is taken" at the meeting). RCW 42.30.020(2), (4). While the OPMA defines "action" quite broadly, see RCW 42.30.020(3), the use of different words in the definition of "governing body"

· suggests that the legislature intended the phrase "acts on behalf of" to carry a

narrower meaning. Moreover, '"[s]tatutes must be interpreted and construed so that all the language used is given effect, with no portion rendered meaningless or superfluous."' G-P Gypsum Corp. 

## v. Dep't ofRevenue, 169 Wn.2d 304, 309, 237 P.3d 256 (201 0) (internal quotation marks omitted) (quoting State

## v. J.P, 149Wn.2d 444, 450, 69 P.3d 318 (2003)). Here, construing "acts on behalf of" as covering all deliberations of a committee would render the remainder of the definition superfluous. As the AGO explained:

10CitizensAlliance forProperty Rights Legal Fund v. San Juan County, No. 90500-2
Ifthe Legislature intended a broad interpretation ofthe phrase "acts on behalf of," it simply would have added the words "or any committee thereof" to the definition of "governing body." Had the Legislature done so, a committee would have been subject to the Act on the same basis as the governing body itself-whenever it conducts a meeting at which action is taken. However, the Legislature also added the phrase "when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment." These words would be rendered meaningless if a committee is required to comply with the Act when it holds a meeting where action is taken. Under this language a committee of a governing body is required to comply with theAct only "when the committee acts on behalfofthe governing body, conducts hearings, ortakes testimony or public comment." We also note that the Legislature selected the word "acts" instead of the word "action," which is broadly defined in RCW 42.30.020(3). Ifthe Legislature intended the phrase "acts on behalfof" to be broadly construed we believe it would have used the word "action." 1986 Op. Att'y Gen. No. 16, at 9. As the 1986AGO opinion acknowledged, while this statutory context strongly suggests that the legislature intended a narrow meaning of "acts on behalf of," the term could also reasonably be construed more broadly as referring to all instances when the committee "performs a specified function in the interest ofthe governing body." 

### /d. at 7. To the extent that a term in a statute is susceptible to more than one reasonable meaning, we may consider the statute's legislative history. Campbell & Gwinn, 146 Wn.2d at 12. In this case, however, the legislative history behind the statute leads to the same conclusion: the phrase "acts on behalfof" does not extend to the work of purely advisory bodies. An early version of the OPMA 1983 amendment would have defined "governing body" as including "any committee thereof ifthe committee is authorized


### 11Citizens Alliance forProperty Rights Legal Fund v. San Juan County, No. 90500-2
to act on behalf of the governing body in conducting hearings, taking testimony or public comment, or deliberating the making ofpolicy orrules." S.B. 3206, at 1-2, 48th Leg., Reg. Sess. (Wash. 1983) (emphasis added). The above-emphasized final phrase was stricken from the definition of a substitute bill, strongly suggesting that the legislature did not intend to extend the OPMA "to committees that do nothing more than deliberate the making of policy or rules." 1986 Op. Att'y Gen. No. 16, at 10. A colloquy on the House floor during the discussion of the amendment further suggests this narrower construction of "acts on behalf of" reflects the intent ofthe legislature: "Mr. Isaacson: 'What are the requirements with respect to giving formal notice?' "Ms. Hine: 'It's the intent of the legislation, we believe, subject to the deliberations of the governing body, that this apply only to deliberations of the governing body or subcommittees which the governing body specifically authorizes to act on its behalf, or which [sic] policy, testimony, or comments are made in its behalf. In Other Words, It's When Making Policy Or Rules, Not For General Comments OrAny Kind Of Informal Type Meeting They May Have. Those would not require the official formal notice."' 

### !d. at 11 (quoting 1 HousE JOURNAL, 48th Leg., Reg. Sess., at 1294 (Wash. 1983)). Taking the plain meaning of the statute together with this legislative history, the AGO concluded that "a committee acts on behalf of the governing body when it exercises actual or de facto decisionmaking authority for the governing body." 

### /d. at 8. We agree and adopt the AGO's construction of "acts on behalf of" as set forth in its 1986 AGO opinion. The OPMA therefore does not extend to advisory committees and other entities that do nothing more than conduct internal discussions and provide advice or information to the governing body.

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### C. "Meeting" OPMAalso specifies when meetings are subjectto the OPMA-when "action is taken" at a meeting. RCW 42.30.020(4). Our case law also establishes that the OPMA applies only to meetings where a majority ofthe governing body is present. In re Recall ofBeasley, 128 Wn.2d 419, 427, 908 P.2d 878 (1996) (citing In re Recall of Roberts, 115 Wn.2d 551, 554, 799 P.2d 734 (1990)); Wood 

### v. Battle Ground Sch. Dist., 107 Wn. App. 550, 564, 27 P.3d 1208 (2001). Gatherings that do not include a majority of the governing body's members are not considered meetings for the purposes ofthe OPMA. Unfortunately, the OPMA does not actually define what a "meeting" itself is, and neither this court nor the AGO has construed "meeting" in an opinion. To construe this term, we start by examining its plain and ordinary meaning. State v. Kintz, 169 Wn.2d 537, 547, 238 P.3d 470 (2010). While we typically ascertain plain meaning from standard English dictionaries, it is helpful to examine legal dictionaries when words are used in a legal context. Lynott

### v. Nat'! Union Fire Ins. Co. ofPittsburgh, 123 Wn.2d 678, 691-92, 871 P.2d 146 (1994). Here, Black's Law Dictionaryprovides a useful definition of "meeting" in the context of legislative and deliberative bodies: meeting, n. (14c) Parliamentary law. A single official gathering of people to discuss or act on matters in which they have a common interest; esp., the convening of a deliberative assembly to transact business. • A deliberative assembly's meeting begins with a call to order and continues (aside from recesses) until the assembly adjourns. BLACK'S LAW DICTIONARY 1131 (10th ed. 2014).

13Citizens Alliance forProperty Rights Legal Fund v. San Juan County, No. 90500-2
For a gathering to be considered a "meeting," then, the purpose of the gathering must be "to discuss or act on matters in which" the attendees "have a common interest." 

### /d. It follows that for a gathering of a governing body's members to be considered a "meeting" of the governing body itself, the "common interest" must relate to the official business ofthe governing body. Consequently, and as our courts have held, members of a governing body "must collectively intend to meet to transact the governing body's official business" for their communications to constitute a meeting. Wood, 107 Wn. App. at 565 (emphasis added) (citing 1971 Op. Att'y Gen. No. 33, at 19). As the Court ofAppeals correctly held, the passive receipt of e-mails and other one-way forms of communication does not, by itself, amount to participation in a meeting because such passive receipt of information does not demonstratethe necessary intentto meet. See CitizensAll., 181 Wn. App. at 545 (citing Wood, 107 Wn. App. at 564). If communications do not reflect the requisite collective intent to meet, no "meeting" has occurred and the OPMA does not apply. Thus, within the context ofthe OPMA, we adopt the following definitions: (1) a "meeting" of a governing body occurs when a majority of its members gathers with the collective intent of transacting the governing body's business, (2) a "committee thereof" with respect to a given governing body is an entity that the governing body created or specifically authorized, and (3) a committee "acts on behalf of" a governing body when the committee exercises actual or de facto decision-making authority on behalf of the governing body. Thus, to establish that the CAO Team violated the OPMA, CAPR must establish that an issue offact exists

14CitizensAlliance forProperty Rights Legal Fund v. San Juan County, No. 90500-2 regarding whether (A) a majority of council members participated in a CAO team meeting with the collective intent of transacting the Council's business, or(B) the CAO Team was created by the Council and (C) that it exercised decision-making authority on behalf ofthe Council. 2

II. The CAO team meetings were not subject to the OPMA Here, the CAO team meetings did not violate the OPMA because (A) none of the CAO team meetings included a majority of council members, (B) the team was not a "committee" of the Council, and (C) the team did not "act on behalf of" the Council. 

### A. No majorityofthe Council CAPR argues that the CAO team meetings constituted meetings of the Council itself because they included a "quorum" of the Council's members. In support ofthis argument, CAPR asserts thatthe OPMAapplies to meetings in which a "'negative quorum'" of the Council's members participate-i.e., a number of Council members sufficient to block legislation being considered by the Council,
even if that number is not sufficient to enact legislation. Am. Pet. for Review at 8. CAPR further alleges that one series of e-mails and telephone conversations constituted a "meeting" of the Council that included an actual majority of the

2 CAPR attempts to argue that these requirements are disjunctive-i.e., that a committee is a "governing body" underthe OPMA if it was created by the council orifit acted on behalf ofthe council. But the "committee thereof" and "acts on behalf of" requirements are clearly separate under the plain language of the statute, which makes a "committee thereof" subject to the OPMAonly "when the committee acts on behalf ofthe governing body

...." RCW 42.30.020(2) (emphasis added). An entity thus must meet both requirements to be subject to the OPMA.

15CitizensAlliance forPropertyRights Legal Fund v. San Juan County, No. 90500-2
Council's members. We reject the former argument because it runs contrary to our

· long-standing precedent requiring the presence ofa majority of a governing body's

members for a gathering to trigger the requirements of the OPMA. We also reject the latter argument because the record does not indicate that a majority ofcouncil members had a collective intent to meet during the e-mail and telephone exchange that CAPR cites. The Council had six members during the relevant period. The CAO Team initially included two members ofthe Council (Fralick and Pratt), and athird member (Miller) began attending the meetings later. While formal attendance records do not appear to have been kept for the team's meetings, we assume arguendo that all three ofthese council members attended all CAO team meetingsthat occurred after Millerjoined the Council. UnderWashington Law, the OPMA applies to a gathering of a governing body's members only if a majority of members are present. See In
re Recall of Beasley, 128 Wn.2d at 427. Applying this standard, the CAO team meetings did not trigger the OPMA because three members ofthe Council is one less than a majority. CAPR argues, however, that we should depart from this precedent and hold that the presence of a "negative quorum" of a governing body's members suffices to trigger the OPMA. A negative quorum refers to the situation where the number of members present would be sufficient to block the passage of legislation. CAPR

16CitizensAlliance forProperty Rights Legal Fund v. San Juan. County, No. 90500-2
cites no Washington case that utilizes the negative quorum principle, instead relying on a single out-of-state opinion published nearly three decades ago. 3 We see no reason to depart from our long-standing rule requiring the presence ofa simple majority ofa governing body's members-a rule that provides clear guidance to public agencies regarding the application ofthe OPMA. It is easy to determine whether a majority of a governing body's members are present at a meeting. On the other hand, it might be difficult to apply a "negative quorum" rule because different measures being discussed by a governing body might require the approval of different numbers of members (e.g., some measures might require a simple majority and others a two-thirds supermajority) for passage.4 We decline to overturn our prior precedent and instead reaffirm that the OPMA applies to meetings of a governing body when a majority of the governing body's members are present. CAPR does not dispute that all of the CAO Team's in-person meetings included at most three members of the Council. Consequently, none of the inperson CAO team meetings constituted a meeting of the Council itself for the purposes of the OPMA. But CAPR asserts that a serialized e-mail and telephone exchange involving members ofthe Council constituted a "meeting" of the Council

3 See State ex ref. Newspapers Inc. v. Showers, 135 Wis. 2d 77, 80, 398 N.W.2d 154 (1987) (Wisconsin open meeting law applied to a gathering of4 members ofan 11-member body to discuss a budget measure that required a two-thirds supermajority to pass).
4 In fact, if a measure required unanimous approval for passage, then the presence of a single member ofthe governing body would technically constitute a negative quorum with respect to that measure.

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because four council members were "present" during the communications. See Suppl. Br. of Appellant at 7-8. The communications that CAPR describes as a "meeting" consisted of two e-mails and a telephone call that occurred over the course of a 14-hour period. Council member Peterson, who did not attend any of the CAO Team's**in~person** meetings, sent the first e-mail on which CAPR relies; the recipients were Fralick and Miller, who were on the CAO Team. Fralick responded to Peterson later the same day, copying Miller. In his e-mail, Fralick alluded to atelephone call between himself and Pratt (another CAO team member) that apparently had occurred earlier in the same day. Both thee-mails and Fralick's summary ofthe telephone call reference the CAO update. These communications did not constitute a meeting ofthe Council because they contain no indication that the participants had the requisite collective intent to meet. See Wood, 107 Wn. App. at 565 ("the participants must collectively intend to meet to transact the governing body's official business" for the OPMA to apply (citing 1971 Op. Att'y Gen. No. 33)). The text of the e-mails do not indicate that Miller or Peterson were aware of Fralick's call to Pratt before Fralick sent his e-mail summarizing it; certainly, the e-mails do not suggest that Miller or Peterson actually intended for a telephone call to Pratt to be part of an otherwise e-mail-based "meeting" of the Council. Likewise, there is no indication that Pratt was aware of the e-mails sent by Peterson or Fralick. Consequently, the communications cited by CAPR do not evidence a collective intent for the four council members to meet to transact council business.

18CitizensAlliance forProperty Rights Legal Fund v. San Juan County, No. 90500-2 Moreover, the record does not contain any e-mails sent by Miller in this exchange, nor does it reference any telephone calls in which Miller participated. Instead, Miller passively received one e-mail each from Fralick and Peterson. Because passive receipt of e-mail does not constitute participation in a meeting, Wood, 107 Wn. App. at 564, Miller could not have been part of the ostensible "meeting" for OPMA purposes. Without Miller, the communications at issue involve only three council members-the same numberthat participated on the CAO Team and less than a majority ofthe full Council. Forthese reasons, the e-mail/telephone exchange did not constitute a "meeting" ofthe Council.5 Because CAPR cites to no meetings or communications of the CAO Team involving more than three council members and because we reject CAPR's "negative quorum" argument, CAPR has failed to establish that the CAO team meetings constituted meetings ofthe Council. B. Not

### a committee ofthe Councilandno action on behalfofthe Council The fact that CAO team meetings were not meetings of the Council itself does not end the Ofl>MA inquiry because the OPMA also applies to committees and subcommittees of legislative bodies under certain circumstances: (2) "Governing body" means the multimember

... council, or other policy or rule-making body of a public agency, or any committee thereofwhen the committee acts on behalf ofthe governing body, conducts hearings, ortakes testimony or public comment.

sWe do not reach the issue ofwhether such a serialized sequence ofcommunications can ever constitute a "meeting" under OPMA.

19Citizens Alliance forProperty Rights Legal Fund v. San Juan County, No. 90500-2 RCW 42.30.020 (emphasis added). Here, CAPR has not alleged that the CAO Team conducted hearings or took testimony or public comment. Thus, for the CAO Team to be subject to the OPMA, it must satisfy two conditions: (1) it must be a "committee thereof" with respect to the Council and (2) it must have "acted on behalf" ofthe Council. The CAO Team does not meet either ofthese requirements. CAPR failed to create an issue of fact whether the team was a committee of the Council because CAPR failed to offer any evidence that the Council authorized the creation of the CAO Team. Moreover, the CAO Team never "acted on behalf of" the Council because the record contains no indication that the CAO Team exercised actual or de facto decision-making power. Rather, all evidence adduced by CAPR suggests that the CAO Team's role with respect to the Council was, at most, that of staff support. 1. The CAO Team was not a "committee thereof" with respect to the Council We applythe 1986AGO opinion's construction of "committee thereof," under which the CAO Team can be considered a committee of the Council only if the Council somehow acted to bring the CAO Team into being. 1986 Op. Att'y Gen. No. 16, at 7. None ofthe voluminous documents that CAPR obtained during discovery and cited in its court filings suggest that the Council took any such action. All six individuals who were members ofthe Council during the CAO update process filed declarations before the trial court stating individually that they took no action as a council member to bring the CAO Team into being, never intended to bring it into being, never authorized the CAO Team to act for the Council, and never intended

20CitizensAlliance forProperty Rights Legal Fund v. San Juan County, No. 90500-2
for the CAO Team to act for the Council. CAPR failed to adduce any evidence disputing these unequivocal statements that the Council did not create the CAO Team, 6 nor have they cited to any documents in the record suggesting that the Council later ratified the CAO Team's formation. The concurrence/dissent argues that the CAO Team was created by the Council because "[i]twas the Council, notthe county administrator, that determined it needed an updated participation plan in orderto fulfill its mandatory dutyto update its critical areas ordinance using best available science." Concurrence/Dissent at 6. Thisis a non sequitur. When a governing body directs its staff to develop a plan of action and the staff creates a committee to develop the plan, the staff, not the governing body, has created the committee. That is the nature oforganizations: the governing body decides on policy and orders the staffto implement the policy, and the staff complies. If the concurrence/dissent's theory were correct, every staff department would be a committee of the governing agency and would be subject to the OPMA. This cannot have been the intent ofthe act. For these reasons, the CAO Team was not a "committee thereof" with respect to the Council. 7

6 In its response to the summary judgment motion, CAPR cited to a single deposition statement by another county employee who was a member ofthe CAO Team opining that the Council "would have created" the CAO Team. The trial court correctly struck this statement as speculation because the deposition did not suggest that the employee had any personal knowledge of how the CAO Team was created; CAPR did not challenge this decision in its petition for review or supplemental brief. 7 On appeal, CAPR has argued that meetings ofother council subcommittees-specifically governance, budget, and solid waste subcommittees-also held closed meetings in violation ofOPMA. SeeAm. Pet. for Review at 4-5. The Court ofAppeals rejected CAPR's



### 21CitizensAlliance for Property Rights Legal Fund

### v. San Juan County, No. 90500-2
2. The CAO Team did not "act on behalf of" the Council Even if we were to conclude that the CAO Team was a "committee" of the Council, CAPR's claim would fail because the CAO Team did not act on behalf of the Council. Applying the 1986 AGO opinion's definition, CAPR must demonstrate that the CAO Team exercised actual or de facto decision-making authority for the Council to establish that the team acted "on behalf of" the Council. See 1986Att'y Gen. Op. No. 16, at 8. The record contains no indication that the CAO Team ever exercised such authority. The record demonstrates that the CAO Team's role with respect to the Council was, at most, that of staff or an advisory board. The CAO Team appears to have spent much of its time discussing procedural and logistical issues such as the timeline for completing the update, the formatting of reports, the scheduling of public comment sessions, and gathering information from outside consultants and experts. Other topics discussed included public messaging and anticipating and responding to potential objections to the update. To the extent that the team addressed the substance of the CAO update, nothing in the record indicates that they did anything more than gather information, conduct internal discussions, and provide information to the Council. As the 1986 AGO opinion suggests and as the

argumentwith respect to these othersubcommittees, noting thatwhile "CAPR made some passing references to the other subcommittees in its amended complaint and response to the County's motion for summary judgment[, it] did not name those subcommittees as defendants, include them in its claim for relief, or provide evidence and argument in support of its assertion that they violated OPMA." CitizensAll., 181 Wn. App. at 542 n.4. We agree and therefore do not consider CAPR's arguments concerning other subcommittees.

22CitizensAlliance forProperty Rights Legal Fund v. San Juan County, No. 90500-2 Court ofAppeals held, none of these activities amount to the exercise of actual or de facto decision-making authority. Rather, they are consistent with the role of an informal advisory committee or administrative staff support. See id. at 11-12; CitizensAll., 181 Wn. App. at 551-52. The concurrence/dissent selectively seizes on part ofa definition ofthe word "act" or "acts" from 1986 AGO opinion, using "exert[s] power or influence or produce[s] an effect" to define "acts." Concurrence/dissent at 8. But this ignores the AGO's express qualification that the committee must be acting "on behalf" of the governing body: "Under this construction, a committee acts on behalf of the governing body when its exercises actual or de facto decisionmaking authority for the governing body." 1986 Op. Att'y Gen. No. 16, at 5. The concurrence/dissent seems to conclude that a committee might be subject to the OPMA ifthe committee exerts power or influence, concluding thatthe CAO Team might have exercised power or influence because "it played a key role in formulating the best available science synthesis adopted by the Council." Concurrence/Dissent at 9. This theory is internally inconsistent, as the CAO Team could not have been acting on behalf ofthe 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. The concurrence/dissent's focus on the exercise of power and producing an effect results in a vague definition of when a committee acts on behalf of the governing body, which the concurrence/dissent characterizes as "nuanced." 

### /d. at 7. As a result, three years after the CAO Team completed its work, after


### 23CitizensAlliance forProperty Rights Legal Fund

### v. San Juan County, No. 90500-2 proceedings in three levels of court, and despite a summary judgment record exceeding 1,000 pages, the concurrence/dissent concludes that we still do not know if the CAO Team acted "on behalf" of the Council. This lack of clarity places government units in the untenable position of not knowing until long after the fact whether any committee is subjectto the OPMA. State and local governments need a clear definition, not a nuanced definition. We adhere to the clear and workable definition that a committee acts on behalf of a governing body only when the committee exercises actual or de facto decision-making authority for a governing body. Consequently, the CAO Team did not act on behalfofthe Council. Theteam's meetings therefore cannot constitute meetings of a "governing body" under RCW 42.30.020(2).

Ill. Attorney fees CAPR asserts that it would be entitled to reasonable attorneyfees and costs under the OPMA if we reverse the Court of Appeals and hold that the County violated the OPMA. Because we affirm and hold that no the OPMA violation occurred, we deny CAPR's request for attorney fees. CONCLUSION Forthese reasons, we affirm.

24CitizensAlliance forProperty Rights Legal Fund

### v. San Juan County, No. 90500-2

WE CONCUR.

25CitizensAll.for Prop. RightsLegalFundv. San Juan County, etal., No. 90500-2 Yu, J. (concurring inpart and dissenting inpart)



### No. 90500-2 YU, J. (concurring inpart and dissenting inpart)-"Allpolitical power is inherent inthe people, and governments derive theirjustpowers from the consent ofthe governed." CONST. art. I, § 1. In orderto give meaning and substance to this consent, the OpenPublic Meetings Act of 1971 (OPMA) helps to ensurethat the people "mayretain control overthe instruments they have created." RCW 42.30.010. I agree withthe majoritythatthe attorney general has providedhighly persuasive guidance for interpretingthe OPMA. Giventhe context and nuances of this guidance, however, I cannot agree with all ofthe majority's conclusions. I wouldholdthatthe Citizens Alliance for Property Rights Legal Fund (CAPR) has shown, as a matter oflaw, that the critical areas ordinanceteam (CAO Team) was
a committee ofthe SanJuan County Council (Council) andthat CAPRhas produced sufficient evidence to create a genuine issue ofmaterial fact as toCitizensAll.for Prop. RightsLegalFundv. San Juan County, etal., No. 90500-2 Yu, J. (concurring in part and dissenting in part) 

### whether and whenthe CAO Team acted on the Council'sbehalf. I therefore respectfully dissent inpart. 1 

### ANALYSIS It

### is undisputed the CAO Teamheldmeetings thatwould have violatedthe OPMA, ifthe OPMA applied. I agree withthe majority thatthe OPMA appliedto those meetings only ifthe CAO Team was a committee ofthe Council and only when it acted onthe Council'sbehalf. See majority at 15 & 

### n.2. However, I would hold CAPRhas produced sufficient evidence to survive summaryjudgment because the CAO Team was a committee ofthe Council as a matter oflaw and there is a genuine issue offact as to whether it acted on the Council's behalf. A. The CAO Teamwas a committee ofthe Council The OPMA applies to governing bodies ofpublic agencies, such as the Council, and to "any committee thereof." RCW42.30.020(2). The CAO Team
was certainly a "committee"-'"abody ofpersons delegatedto consider, investigate, ortake actionupon andusu. to report concerning some matter of business."' 1986 Op. Att'y Gen. No. 16, at 6 (quoting WEBSTER'S THIRDNEW INTERNATIONALDICTIONARY 458 (1971)). The question is whatthe CAO Team

1 I agree that CAPRhas notproduced sufficientevidence to survive summaryjudgmentonthe question ofwhetherthe Council as awhole violatedthe OPMA. I also agree thatwe should not consider its arguments regarding any committees otherthanthe CAO Team. Finally, I agree withthe necessarily implied conclusionthat, even ifthe CAO Team did violate the OPMA, the ordinances at issue in this case are notvoid under RCW 42.30.060(1). Itherefore concurinpart. 2CitizensAll.for Prop. Rights LegalFundv. SanJuan County, etal., No. 90500-2 Yu, J. (concurring inpart and dissenting inpart)


### was a committee of, 

### and based onthe facts presented, I would holdthat it was a committee ofthe Council. In 1986, the attorney general issued a formal opinion determining that a committee ofa governing body could include "committees composed of nonmembers ofthe governingbody when appointed bythe governing body." Jd. 

### at 2. The OPMA's coverage "includes any committeethe governing bodybrings into being" because in this context, "thereof' is broadly defined as '"fromthat cause: from thatparticular."' Id. 

### at 6-7 (quoting WEBSTER's, 

### supra, at 2372). This coverage is not limited to committees brought into being "though a formal legal instrument such as a legislative resolution or an executive directive." Majority at 2-3. Quite the contrary. In fact, the OPMA was amendedto fill a "gap in the coverage" for "committees, subcommittees, and other groups that were not createdby orpursuant to statute, ordinance, or other legislative act." 1986 Op. Att'y Gen. No. 16, at 4. Holding thatthe OPMA does not apply to committees unless they are createdby a formal legal instrumentreopens a statutory gap thathas been closed for nearly 30 years. "'Theunavoidable fact is that eachnew arrangement mustbe examined
anew and in its own context."' 1991 Op. Att'y Gen. No.5, at 5 (quotingPub. 

### Citizen Health Research Grp. v. Dep'tofHealth, Educ. & 

### Welfare, 215 U.S. App. D.C. 191, 668 F.2d 537, 542 (1981)). As eloquently stated in an informal opinion

3CitizensAll.for Prop. RightsLegalFundv. SanJuan County, eta!.,No. 90500-2 Yu, J. (concurring inpart and dissenting inpart) 

### bythe attorney general's open government ombudsman, "Whetherthe committee
was created directly or indirectly bythe [governing body] is ofless relevancethan how it functions as a committee." Clerk's Papers (CP) at 695; 

### cf Worthington v. WestNET, 182 Wn.2d 500, 507-08, 341 P.3d 995 (2015) (endorsing a functional approachto analyzing when an entity is apublic agency subjectto the Public Records Act, chapter42.56 RCW). There is certainly nothing in the recordto showthatthe Council specifically createdthe CAO Teamwith a formal legal instrument, butthe relevant inquiry is the contextin whichthe CAO Teamwas created and not merelythe formalities ofhow itwas done. Nothing aboutthe OPMA endorses the viewthat informality is an adequate substitute for open government. The record indicates thatthe specific ideato form a CAO Team came from the county administrator, CP at 254, 761-69, and the CAO Team was originally broughttogetherby ajointeffort ofits members, which included members ofthe Council as well as other individuals, SANJUAN COUNTYRESOLUTION (SJCR) 26- 2010, at 3 (June 29, 2010).2 

### Those actions, bythemselves, probably wouldnot make the CAO Team a committee ofthe Council. Generally speaking, a group may come together on its own initiative to discuss ideas and formulate suggested

2The county has acknowledgedthatwe maytakejudicialnotice ofthis resolution, as well as SJCR 12-2010 (Feb. 16, 2010) and SJCR 32-2011 (Aug. 9, 2011). See Resp't's Answerto Mot. to Augment R. after Oral Arg. at 3-4. 4CitizensAll.for Prop. Rights LegalFundv. San Juan County, etal., No. 90500-2 Yu, J. (concurring inpart and dissenting inpart) 

### approaches to govermnentpolicy withoutbeing a committee ofthat government. Butthat is not all thathappened here. The CAO Team was formed because the Councilhad already tried and failed twice to update the county's critical areas ordinance. 

### See, e.g., CP at 254- 55, 290, 320, 384. By statute, this update was mandatory and required "thebest available science in developing policies and developmentregulations to protectthe functions and values ofcritical areas." SCJR 12-2010, at 1(Feb. 16, 2010) (citing RCW 36.70A.130, .172). A problem arose inthe Council'spriorupdate attempts when "the SanJuan County Planners and a citizens advisory committee" used incomplete reports "to prepare a draft critical areas ordinance before the best available science was approved bythe County Council." !d. Based onthis prior experience, the Council determined inFebruary 2010 that it neededto "revise its process for consideration ofbest available science in the adoption ofits critical areas regulations." !d. The Council directedthe planning departmentto draft "arevisedpublic participationplan with a schedule for the review, and ifnecessary, revision of'the critical areas ordinance. !d. at 2. The Council provided specific directions about whatthe publicparticipationplan should look like: "The first step ofthe public participationprocess will beto identifythe best available science that will be reliedupon," which should include opportunities for submissions and comments by the public. !d.

5CitizensAll.for Prop. RightsLegalFundv. SanJuan County, etal., No. 90500-2 Yu, J. (concurring inpart and dissenting inpart) 

### Approximately four months after the Council determined it needed arevised participationplan, it formally adopted one. The first step ofthatplanreads, "Establish CAO Update Implementation Team." SJCR26-2010, at 3 (boldface omitted). The CAO Teamwas designated as solelyresponsible for "[d]etermin[ing] content and format ofscience syntheses, evaluation of reg[ulations] and recommendations." 

### !d. at 5. In August 2011, the Council passed
aresolutionupdating and replacing the earlierplan. The first taskwas listed as "Establish [critical areas ordinance/shoreline master program] Update ImplementationTeam." SJCR32-2011, Ex. A at 

### 1. The CAO Team was designated as the party solelyresponsible for having completedthe task of "[d]etermin[ing] content and format ofscience syntheses." 

### !d. at 3. This context cannotbe ignored. Itwas the Council, notthe county administrator, that determined itneeded an updatedparticipationplan in order to fulfill its mandatory dutyto update its critical areas ordinance using best available science. The Council passed a formal resolution ratifyingthe CAO Team'srole in thatplan. Unlike an outside group, such as a citizens' committee, the CAO Team
was not merely given an opportunity to provide input-itwas delegated specific, essential tasks, withoutwhichthe Council "wouldn'thave made anyprogress." CP at 230. Its taskwas notmerelyto develop aplan for synthesizing best available science butto actually formulate that synthesis, whichrequired discarding specific

6CitizensAll.for Prop. Rights LegalFundv. SanJuan County, etal., No. 90500-2 Yu, J. (concurring inpart and dissenting inpart) 

### approaches. Andunlike many otherparties with designated roles in the participationplan (for example, the Department ofCommerce andthe county prosecuting attorney), the CAO Team did not existbefore or after the Council's ordinanceupdate process. The Council is the entity thatbroughtthe CAO Team into being, and the CAO Team was therefore a committee ofthe Council. B. There is a genuine issue ofmaterial fact as to whetherthe CAO Team acted on the Council's behalf I agree withthe majority thatjustbecause an entity is a committee ofa governing body does not mean all its meetings are subjectto the OPMA. As applied to this case, the OPMA applies only whenthe committee "acts on behalfof the governing body." RCW 42.30.020(2). Contraryto the majority's summary conclusions, I believe there is a genuine issue offact as to whetherthe CAO Team did so.1. The attorney general's guidance mustberead in context The attorney general determinedthat "acommittee acts onbehalfofthe governing body when its exercises actual or de facto decisionmaking authority for the governing body." 1986 Op. Att'y Gen. No. 16, at 8. This guidance is both persuasive andrelevant, but it is also more nuancedthanthat single phrase conveys. "[A] committee might act on behalfofthe governing body only whenit exerts power or influence orproduces an effect as the representative ofthe
7CitizensAll.for Prop. RightsLegalFundv. SanJuan County, etal., No. 90500-2 Yu, J. (concurring inpart and dissenting inpart) 

### governing body." !d. at 7. To exertpower or influence orproduce an effect as the governing body's representative, a committee must do more than merely discuss an issue. As the attorney general has noted, ifthat were sufficient, committee meetings wouldbe subjectto the OPMAto the same extent as meetings ofthe governing body. !d. at 9. Onthe evidence presented, many ofthe CAO Team's activities probably did not rise to the level ofacting on behalfofthe Council under the definition adopted bythe attorney general. However, a committee's activities certainly do not neednottake the form of "final action" as defined in RCW 42.30.020(3) ("[A] collective positive or negative decision, or an actual vote by a majority ofthe members ofa governing body when sitting as abody or entity, upon a motion, proposal, resolution, order, or ordinance."). If

### that were necessary, the committee wouldhave to usurp the final decision-making authority ofthe governing body before the OPMA could apply. Such an interpretation is easyto apply inpractice but is irreconcilable withthe OPMA's broad statement oflegislative purpose: The legislature finds and declares that all
... councils, committees, subcommittees,
... and all otherpublic agencies ofthis state and subdivisions thereofexistto aid in the conduct ofthe people's business. It

### is the intent ofthis chapterthattheir actions be taken openly and thattheir deliberations be conducted openly. RCW 42.30.010.

8CitizensAll.for Prop. RightsLegalFundv. SanJuan County, etal., No. 90500-2 Yu, J. (concurring inpart and dissenting inpart) 

### The attorney general's full definition captures the appropriate middle ground
onwhich we should analyze whether and whenthe CAO Team acted onbehalfof the Council-wheneverit "exert[ed] power or influence orproduce[d] an effect as the representative ofthe governingbody." 1986 Op. Att'y Gen. 16, at 8. I would holdthatthe evidencepresented indicates that at least some ofthe CAO Team's activities mighthave metthis definition. 2. There is a genuine issue ofmaterial fact about whether the CAO Team acted onbehalfofthe Council Our ability to evaluate whatthe CAO Team did at any particular meeting is hamperedbythe fact that its meetings were notrecorded ortranscribed and that CAO team members generally statedthey did notrecall the specific events ofany



# . particularmeeting orthe specific discussions held on any particulartopic. 3 

### E.g., CP at 258, 267, 367, 385-86. This lack ofdocumentation and institutional amnesia only emphasizes the importance ofpublic oversightunderthe OPMA. Nevertheless, there is sufficient evidence to create a genuine issue ofmaterial fact. We knowthe CAO Teammetover 20 times, andwe knowitplayed a keyrole in formulating thebest available science synthesis adoptedby the Council. The full extent and influence ofthis role is a question offact.

3Whetherthese assertions are credible is, ofcourse, a questionfor the finder offact.
9CitizensAll.for Prop. Rights LegalFundv. San Juan County, eta!.,No. 90500-2 Yu, J. (concurring inpart and dissenting inpart) 

### While official documents relevantto this question are scarce, some are illuminating. The Council's ownresolutions designatethe CAO Team as solely responsible for"[d]etermin[ing] content and format ofscience syntheses." SJCR 26-2010, at 5; SJCR 32-2011, Ex. A at 3. Determiningthe format ofscience syntheses is unlikely to exertpower or influence or create any substantive effect on the Council's behalf, but determining its content certainly would. I do notbelieve that at the summaryjudgment stage, this can be dismissed as mere unartful wording. The county's prosecuting attorney indicatedthat in council committees, "ideas andpolicies are brought forward, discussed, narrowed and discarded and approaches are formulated for making presentations ofsubcommittee workto the entire Council." CP at 453. Simplybringing forth and discussing ideas and policies is not acting onthe Council'sbehalf, butnarrowing and discarding them mightbe. Indeed, members ofthe Council indicatedthatthis narrowing and discarding process might include decidinghowmuch ofthe information underlying its recommendations, ifany, shouldbe providedto the full Council orto the public. For instance, the Council held a special public meeting onJanuary 31, 2012 to discuss "issues associated withthe role ofsubcommittees." Id. 

### at 228. Many statements by the council members themselves indicate thatneitherthe Council nor the public was given access to the information underlying committee

10CitizensAll.for Prop. RightsLegalFundv. SanJuan County, etal., No. 90500-2 Yu, J. (concurring inpart and dissenting inpart) 

### recommendations or evenprovidedwith a summary ofthe committee's discussions in reaching its recommendations. One council member statedthatthere was a "challenge" presentedbythe fact that "likethe public, those council members who aren't onthe subcommittee aren'tprivyto all ofthe information and all ofthe discussion that went into the formation ofarecommendation." Id. 

### at 229. Laterin the same meeting, a council member who was speaking from the perspective of
someone "[h]aving only dealtwiththis system for a year" raisedthe CAO Team as
an example ofa "subcommittee" whose members "wouldhave more knowledge thanthe rest ofthe council."4 

### Id. 

### at 230. A third council member freely acknowledgedthat committee members mighttell the rest ofthe Councilthey have nothingto report from committee, notbecause nothing happenedbut because I was there and lived it, but am I being fair to the rest ofthe council by notproviding some ofthe background ofthe nature ofthe dialogue?

... We can't sit down andhave the whole conversation with youthat we had inthe subcommittee, butI don't see any reasonwhy the documents couldn'tbe made more readily available so youhave them andyou have a chanceto digestthem.

40thercouncil members who were part ofthe CAO Team quicklyjumped in to make it clear they did not viewthe CAO Team as a subcommittee "because it actuallyhas staffand other people involved," CP at 230, butthe attorney general's 1986 opinionmakes it clearthat an entity's membership is not determinative ofwhether it is a committee ofa governing body. This candid statement from a council member looking at the CAO Team from an outside perspective is telling as to the actual function ofthe CAO Teamrelative to the Council as a whole. 11CitizensAll.for Prop. RightsLegalFundv. SanJuan County, etal., No. 90500-2 Yu, J. (concurring inpart and dissenting inpart) 

### Id. at 232. And a fourth membernotedthat whenthe full Council was "in an agenda crunch," reports from subcommittees "areusually one ofthe things that goes first" and are mostlikelyto betreated "asthrowaways." Id. at 232. Unofficial records created by CAO team members further indicate thatthe CAO Team considered more informationthan itprovided to the Council or the public in the process ofcrafting the best available science synthesis. Particularly in light ofthe central importance ofbest available science to the Council's mandatory duty to update its critical areas ordinance, this issue warrants careful scrutiny. Using the best available science is not simply goodpolicy; it mustbe considered "in developing policies and developmentregulations to protectthe functions and values ofcritical areas." SJCR 12-2010 at 

### 1. One ofthe CAO Team's duties regardingthe best available science synthesis
was "identifying for the County Council its view ofwhatpolicy decisions hadto bemade bythe County Council." CP at 445. This provided a "startingpoint" for determining what issues the Council should even look at. Id. at 446. Itshould go without sayingthat identifying the issues thatmustbe decided is very likely to produce an effect onthe decisions that are made. Particularly in light ofthe fact thatthe majority ofthe Council agreed in 2012 that its committees often did not provide itwiththe informationunderlying its decisions, I wouldholdthere is a

12CitizensAll.for Prop. Rights LegalFundv. San Juan County, eta!.,No. 90500-2 Yu, J. (concurring inpart and dissenting in part) 

### genuine question offact as to whether identifying issues rose to the level ofacting
on behalfofthe Council. A member ofthe CAO Team who was not onthe Council also indicatedthat the CAO Team's duties includedmaking suggestions for explainingthe scientific information "in a way thatnormal people canunderstand." Id. 

### at 401. Whether the CAO Team consideredthat an issue ofdeterminingthe "content" ofthe best available science synthesis ormerely its "format," the "normal" people should be able to see the underlying information that is being explained. It

### is not clear from the record whether and to what extentthey were able to access that information, and there is a genuine issue ofmaterial fact as to the level ofinfluence this may have had. It

### also appears there was an ongoing question about whether a scientific expert contractedby the countywas in fact providingthe best available science. In November 2011, a member ofthe CAO Teamwrote an e-mail to the rest ofthe CAO Team about this expert: At some point soonwe do needto discuss Dr. Adamus' role moving forward. While he canbe quite helpful, it is aproblem ifhe doesn't have time to attendhearings (whichwe have not asked himto do but which would help him understandthe comments we receive), review materials, andparticipate in problem solving in a constructive manner. His lack ofattention and input into the last wetland draftresulted in a significantwaste ofboth ourtime, and the public'stime.

13CitizensAll.for Prop. Rights LegalFundv. SanJuan County, eta!., No. 90500-2 Yu, J. (concurring inpart and dissenting inpart) 

### !d. at 517. Several months later, these problems had onlybecome worse. In an email messageto the rest ofthe CAO Team, the same team memberlamented, "We
are continuing to struggle with the crafting ofa site specific approachto buffers that is understandable, workable and scientifically defensible-andthe more I workwiththe various versions ofDr. Adamus' approaches the more concernedI become." 

### Id. at 503. After listing various problems withthe substance ofthe expert'srecommendations, she concludedthat itwas unlikelythe CAO Team wouldbe able "to go forward with one approach we bothunderstand and support," which "is an odd situation for a client and contractor." 

### Id. at 504. Members ofthe CAO Team statedthey couldnotrememberwhathappened inresponse to this e-mail. 

### Id. at 336-41, 414-15. However, I find ittroublingthat
a member ofthe CAO Team would suggest itwas appropriate for the CAO Team, ratherthanthe full Council, to determine "howto proceed" regarding this substantive conflictwithoutpublic oversight. 

### !d. at 504. The public has a rightto
see more thanjustan alternative to the expert's recommendations-ithas a rightto know when its money is being spent onthe services ofan expertwhose recommendations might include major substantive flaws based onthe expert's inability to "participate inproblem solving in a constructive manner." 

### Id. at 517. And ifthe county spent its limited funds on an expertwhose contributions were illinformed or unsupportable, itis a reasonable inference thatthe county had less

14CitizensAll.for Prop. Rights LegalFundv. SanJuan County, eta!.,No. 90500-2 Yu, J. (concurring inpart and dissenting in part) 

### money to spend on someone who would do thejobwell, exerting influence over the Council's ultimate decisions. Ifthe Council had decidedthat some ofthe information it solicited, gathered, and paid for withpublic funds was not sufficiently important, persuasive,
orprobative enoughto warrant consideration in formulating its policy decisions, it wouldbe exercising its actual decision-making authority. If, as the record indicates, the CAO Team made such a decision withoutthe Council's input, it exercised decision-making authority onthe Council's behalf. Depending onthe circumstances, such a decision could very well exertpower or influence orproduce
an effect on a governingbody's entire decision-making process.5 

### Allowing such decisions to occurbehind closed doors is directly contraryto
one ofthe OPMA's fundamental principles: "Thepeople, in delegating authority, do not give theirpublic servants the rightto decide what is good for the peopleto know and what is not good for themto know." RCW 42.30.010. Inthe words of
one council member, "[i]ftheywantto watchthe sausage grinding,
...theyhave everyrightto witness the decision-makingprocess and all the discussionthatgoes

5This interpretation is fully consistent withthe other activities thatmight subject a committee meeting to the OPMA's requirements-"conduct[ing] hearings, ortak[ing] testimony orpublic comment." RCW42.30.020(2). The public clearly has arightto knowthe underlying information a committee considered ifthat informationis presented orally. I cannotreadthe OPMA as granting a committee license to decide, onbehalfofa governing body andbehind closed doors, whetherthe public has arightto know about informationpresentedinwriting. 15CitizensAll.for Prop. RightsLegalFundv. San Juan County, etal., No. 90500-2 Yu, J. (concurring inpart and dissenting inpart) 

### into arriving at whatever ordinance orresolution or whatever outcome we arrive at." CP at 229. CONCLUSION The CAO Team was certainly a committee ofthe Council, and it mayhave acted onthe Council'sbehalf. Itherefore respectfully dissent from the majority's conclusionthatthe OPMA does not apply to the CAO Team as a matter oflaw.

16CitizensAll.for Prop. Rights LegalFundv. San Juan County, eta!.,No. 90500-2 Yu, J. (concurring inpart and dissenting in part)



### 17