IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

CITIZENS ALLIANCE FOR PROPERTY RIGHTS LEGAL FUND, A Washington non-profit corporation, Appellant,

v. SAN JUAN COUNTY, a Washington and the SAN JUAN COUNTY CRITICAL AREA ORDINANCE/SHORELINE MASTER PROGRAM IMPLEMENTA TION COMMITTEE, a subcommittee of the San Juan County Council, Respondents. No. 70606-3-1

ORDER GRANTING MOTION TO PUBLISH

Washington State Association of Municipal Attorneys filed a motion to 

### publish the unpublished opinion filed inthe above mater on April 28, 2014. The court called for an answer to the motion. Answers to the motion to publish was 

### filed by the appellants, by Allied Daily Newspapers ofWashington, and Washington Coalition for Open Government. 

### A majority of the panel has determined that the motion to publish should be granted. Now, therefore, it is hereby ORDERED that the motion to publish the opinion is granted. 

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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

CITIZENS ALLIANCE FOR PROPERTY RIGHTS LEGAL FUND, AWashington non-profit corporation, Appellant,

SAN JUAN COUNTY, a Washington and the SAN JUAN COUNTY CRITICAL AREA ORDINANCE/SHORELINE MASTER PROGRAM IMPLEMENTA TION COMMITTEE, a subcommittee of the San Juan County Council, Respondents. No. 70606-3-1

DIVISION ONE

PUBLISHED OPINION

FILED: April 28. 2014 Spearman, C.J.

— The central issue in this case is whether members of 

### the San Juan County Council (the Council) violated the Open Public Meetings 

### Act (OPMA) by attending a series ofclosed meetings as part of a working group known as the San Juan County CriticalArea Ordinance/Shoreline Master 

### Program Implementation Committee (CAO Team).1 CitizensAlliance for Property Rights Legal Fund (CAPR) appeals the trialcourt's summaryjudgment dismissal of its lawsuit against San Juan County (the County) and the CAO subcommittee,
1This group is referred to by several different names in the record, including CAO/SMP Implementation Committee, CAO/SMP Implementation Team, CAO Facilitation Group, and Pete's Implementation Team. Forsimplicity, it is referred to herein as the "CAO Team."No. 70606-3-1/2 

### arguing that the trial courtmisinterpreted and misapplied several keyprovisions ofOPMA and erroneously ruled that there were no genuine issues of material fact. Finding no error, we affirm.
FACTS 

### In 2010, San Juan County began the process of updating its Critical Area 

### Ordinances pursuantto the Growth Management Act, chapter 36.70ARCW. The CAO Team, which included members of the County executive staffas well as three of San Juan County's six councilmembers, was formed to facilitate and 

### coordinate the County's efforts in this regard. The CAOTeam did not open its meetings to the public. 

### In April 2012, San Juan County Prosecuting Attorney Randall Gaylord issued a memorandum advising the Council that "no meetings ofthree council members should occur without complying withthe notice and other requirements 

### of the Open Public Meetings laws." Clerk's Papers (CP) at 452. Gaylord acknowledged that the law in this regard is uncertain, but opined that "[e]ven if 

### the law is not clear, the better approach is to err on the side offollowing the Open Public Meetings Act." CP at 452. The Council members followed Gaylord's advice and immediately discontinued this practice.2 Ten months later, the Council adopted four critical areas ordinances. Prior to adoption, the Council held approximately 75 public meetings to discuss the
2In November 2012, the voters of the County changed the Council from a six to a three member governing body, effective May 2013.No. 70606-3-1/3
critical areas ordinance and provide opportunity for public comment. More than 

### 30 ofthese meetings occurred after the CAO Team stopped meeting inApril
2012. 

### In October 2012, CAPR filed a complaint against the County, the CAO Team, and Councilmembers Richard Fralick, Patty Miller, and Lovel Pratt, alleging that the CAO Team meetings violated the OPMA. CAPR requested (1) nullification of all actions taken in violation of OPMA; (2) civil penalties against each member that committed knowing violations of OPMA; (2) an award of costs and attorney fees; and (4) injunctions enjoining future violations of OPMA and the Growth Management Act. In an Amended Complaint filed in November 2012, CAPR non-suited its Growth Management Act injunction action, dismissed its claim against the individual Council members, and waived civil penalties. The County moved for summaryjudgment, arguing that CAPR lacked sufficient evidence to support its case. CAPR submitted voluminous evidence in 

### response.3 In a letter decision, the trial court concluded that CAPR had failed to show that there was an issue of material fact regarding whether the CAO Team meetings violated the OPMA, and granted summaryjudgment to the County. The

3CAPR argues that the trial court should have treated the County's summaryjudgment motion as a motion forjudgment on the pleadings under CR 12(c) because the County only attacked allegations in CAPR's complaint and failed to submit affidavits or identify portions of the record which demonstrate the absence of a genuine issue of material fact. This argument lacks merit. Even assuming for the sake of argument that the County's motion was functionally a motion forjudgment on the pleadings, itwas converted to a motion for summaryjudgmentwhen CAPR submitted evidence in response. CR 12(c); P.E. Systems, LLC v. CPI Corp., 176 Wn.2d 198, 206, 289 P.3d 638 (2012). We also note that both parties had a reasonable opportunity to present materials relevant to a summaryjudgment motion within the CR 56(c) time for response.

-3No. 70606-3-1/4


### trial court also denied CAPR's subsequent motion for reconsideration.4 CAPR appeals.5 DISCUSSION This court reviews an appeal from summaryjudgment de novo. Bostains
v. Food Express. Inc., 159 Wn.2d 700, 708, 153 P.3d 846 (2007). Summary 

### judgment is appropriate only if"the pleadings, depositions, answers to 

### interrogatories, and admissions on file, together with the affidavits, ifany, show 

### that there is no genuine issue as to any material fact and that the moving party is entitled to ajudgment as a matter oflaw." CR 56(c). All facts and reasonable inferences are construed inthe lightmost favorable to the nonmoving party. Shoulberq v. Public Utility Dist. No. 1 of Jefferson Cv., 169Wn.App. 173, 177, 

### 280 P.3d 491 (2012), rev. denied. 175 Wn.2d 1024 (2012). 

### "[A] partymoving for summaryjudgment can meet its burden bypointing out to the trial court that the nonmoving party lacks sufficient evidence to support its case." Guile v. Ballard Community Hosp.. 70 Wn. App. 18, 21, 851 P.2d 689 

### (1993). "Afterthe moving party meets itsinitial burden to show an absence of

4CAPR contends that the trial court erred indismissing CAPR's complaint in its entirety, including its claims againstthe San Juan County Council's Budget Subcommittee, General Governance Subcommittee, and SolidWaste Subcommittee, because the County's motion for summaryjudgmentonly soughtdismissal ofallegations against the CAO Team. Thisargument lacksmerit. CAPR's allegations and argumentsfocused solely on the CAO Team. CAPR made somepassing references to the othersubcommittees in its amended complaint and responseto the County'smotion for summaryjudgment, butdid not name those subcommittees as defendants, include themin itsclaim for relief, orprovide evidenceand argumentin supportof its assertion that they violated OPMA. 5Allied Daily Newspapers ofWashington, Washington Newspapers Publishers Association, andWashington Coalition for Open Government alsofiled an amicus brief.

4-No. 70606-3-1/5 

### material fact, the inquiry shifts to the party with the burden of proof at trial. . .." West v. Thurston Cv.. 169 Wn.App. 862, 866, 282 P.3d 1150 (2012) rev. denied. 176Wn.2d 1012 (2013). citing Young v. Kev Pharm.. Inc.. 112 Wn.2d 216, 225, 

### 770 P.2d 182 (1989). "Ifthe moving party is a defendant and meets this initial 

### showing, then the inquiry shifts to the partywith the burden of proof at trial, the 

### plaintiff:" Young. 112Wn.2d at 225. "If, at this point, the plaintiff'fails to make a showing sufficientto establish the existence of an element essential to that 

### party's case, and onwhich thatparty will bear the burden ofproofattrial,' then the trial court should grant the motion." Young, 112Wn.2d at 225, quoting Celotex Corp. v. Catrett. 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Email exchange 

### "[T]he OPMA is a comprehensive statute, the purpose ofwhich is to ensure thatgovernmental actions take placein public." FeatureRealty. Inc. v. City ofSpokane. 331 F.3d 1082, 1086 (9thCir. 2003). OPMA contains a strongly 

### worded statement ofpurpose: "The legislature finds and declares thatall public commissions, boards, councils, committees, subcommittees, departments, 

### divisions, offices, and all otherpublic agencies of this state and subdivisions thereof exist to aid in the conduct of the people's business. It is the intent of this 

### chapterthattheir actions betaken openly and thattheir deliberations be 

### conducted openly." RCW42.30.010. The statute mandatesliberal construction to further its policies and purpose. RCW42.30.910.No. 70606-3-1/6
To enforce OPMA's civil penalty provision, plaintiffs must show (1) that a 

### member of a governing body (2) attended a meeting ofthat body (3) where action was taken in violation of OPMA and (4) the member had knowledge that 

### the meeting violated OPMA. Wood v. Battle Ground Sch. Dist.. 107 Wn. App. 500, 558, 27 P.3d 1208 (2001). Where, as here, plaintiffsare not seeking to 

### enforcethe civil penaltiesprovision, thefourth factor is inapplicable.6 OPMA provides that "[a]ll meetings of the governing body of a public 

### agency shall be open and public and all persons shall be permitted to attend any meeting ofthe governing bodyofa public agency, except as otherwise provided in thischapter." RCW42.30.030. A"governing body" is "themultimemberboard, commission, committee, council, or other policy or rule-making body of a public 

### agency, or anycommittee thereofwhen thecommittee acts onbehalfofthe 

### governing body, conducts hearings, ortakestestimony orpublic comment." RCW 42.30.020(2). A"public agency" is "[a]ny county, city, school district, special 

### purpose district, orother municipal corporation orpolitical subdivision ofthe state ofWashington." See RCW 42.30.020(1 )(a). "Meeting" isdefined as "meetings at
6There is some confusion in the case law regarding the proper standard to avoid 

### summaryjudgmentdismissal ofanOPMA claim thatdoesnotinvolve civil penalties. In Eugsterv. Citv ofSpokane. 110Wn. App. 212, 222, 39 P.3d 380(2002), Division Three citedWood in 

### stating that "[to] defeat summaryjudgmentdismissal ofanOPMAclaim, the plaintiffmust submit evidence showing "(1) that a 'member' ofagoverning body (2) attended a 'meeting' ofthatbody 

### (3) where 'action' was taken in violation of the OPMA, and (4) thatthe memberhad 'knowledge' thatthemeeting violated OPMA." Wood. 107 Wn. App. at558. However, theWood courtwas 

### specifically addressing arequestto impose civil penalties underRCW42.30.120(1), which requires ashowing thatthe memberknowingly violated OPMA. The otherthree remedies available underOPMA do notrequire proofofknowledge. See RCW42.30.060(1) (nullification of 

### action); RCW42.30.120(2) (attorney fee award); RCW42.30.130 (injunction). Thus, itisnot 

### appropriateto graftaknowledge requirementonto the testfor overcoming summaryjudgment where civil penalties are not at issue.No. 70606-3-1/7


### which action is taken." See RCW 42.30.020(4). "Action" means "the transaction 

### of the official business of a public agency by a governing body including but not limited to receipt of public testimony, deliberations, discussions, considerations, 

### reviews, evaluations, and final actions." See RCW 42.30.020(3). Clearly, the Council is the "governing body" of a "public agency." However, underWashington case law, a gathering that includes less than a majority ofthe governing body does not violate OPMA. Wood, 107 Wn. App. at 564, citing In re Recall of Beaslev. 128 Wn.2d 419, 427, 27 P.3d 878 (1996) and In re Recall of Roberts. 115 Wn.2d 551, 554, 799 P.2d 734 (1990). At all times relevant to this case, the Council had six members. Therefore, a gathering that includes three councilmembers does not constitute a "meeting" ofthe Council for OPMA purposes, regardless ofwhether "action" is taken. CAPR contends that on November 14, 2011, four ofsix councilmembers 

### held a "meeting" in violation of OPMA by participating in an email and telephone 

### exchange in which they discussed CAO Team matters. The trial court properly 

### rejected this argument, both on the merits and because CAPR first advanced the argument in its motion for reconsideration. "[T]he OPMAdoes not require the contemporaneous physical presence of [members ofthe governing body] inorder to constitute a meeting." Eugster. 110 Wn. App. at 224. An exchange ofemails
can constitute a "meeting" for OPMApurposes. Wood. 107 Wn. App. at 564. However, "the mere use or passive receipt ofe-mail does not automatically 

### constitute a 'meeting.'" Wood. 107 Wn. App. at 564. Viewed inthe lightmostNo. 70606-3-1/8
favorable to CAPR, the record shows that at most three councilmembers (Richard Fralick, Lovel Pratt, and Rich Peterson) participated in the active discussion of issues by phone or email. The fourth councilmember, Patty Miller, received a copy ofthe email, but there is no evidence that she responded or actively participated inthe discussion. CAPR also vaguely asserts that four Council members were present at 

### other "meetings ofthe subcommittees" but fails to back up this claim with 

### argument or citations to the record. We need not consider it. State v. Dennison. 115Wn.2d609, 629, 801 P.2d 193(1990); RAP 10.3(a)(5). Negative Quorum 

### CAPR argues that this court should create a new rule and hold that a 

### "meeting" occurs for the purposes ofOPMA when the number of members 

### present is sufficientto block action when the matter discussed comes up for a vote before the governing body, therebyconstituting a "negative quorum." In support, CAPR cites a Wisconsin case, State ex rel. Newspapers. Inc. v. Showers. 135 Wis.2d 77, 398 N.W.2d 154 (1987). InShowers, four members of 

### an eleven member body met to discuss budget measures. Showers. 135 Wis.2d 

### at 80. Passing the budget measure required a two-thirds vote, meaning that eight out ofeleven members had to approve the change. ]d. The Wisconsin Supreme Court held that Wisconsin's Open Meeting Law applied because four members 

### couldblock the parent body's course of action regarding the proposal discussed 

### at the meeting byvoting together. Id. at 80. Priorto May 2013,the Council had

8No. 70606-3-1/9
six members, with at least four votes necessary to pass ordinances. Therefore, applying the reasoning of Showers. CAPR contends that a gathering ofthree councilmembers constitutes a "negative quorum" to which OPMA requirements should apply. No Washington cases directly address the reasoning of the Showers case. San Juan County Prosecutor Randall Gaylord cited Showers in his April 2012 memorandum advising the Council that OPMA requirements should be followed when three of six councilmembers gather to discuss County business. Given the OPMA's mandate for liberal construction, this argument is not frivolous. Nevertheless, we decline to follow Showers. As an out-of-state case, it is not 

### binding on this court. Moreover, itwould carve out a significant exception to wellestablished Washington precedent holding that OPMAdoes not apply where a 

### majority of the governing body is not present. See Beasley. 128 Wn.2d at 427 (in recall action, no meeting of majority ofschool board); Roberts. 115 Wn.2d at 554 

### (in recall action, no meeting ofmajority of town councilmembers). We also note that, effective May 2013, San Juan County voters reduced the size of the Council from six members to three, thereby eliminating the possibilitythat the negative quorum issue could arise again in San Juan County. Governing Body 

### CAPR next argues that itdoes not matter ifa majority of the Councilwas 

### notpresent at CAO Team meetings, because the CAO Team itselfwas a 

### "governing body" subject to OPMA requirements. The term "governing body"

9-No. 70606-3-1/10


### includes "the multimember board, commission, committee, council, or other 

### policy or rule-making body of a public agency," as well as "any committee thereof when the committee acts of behalf of the governing body, conducts hearings, or takes testimony or public comment." RCW 42.30.020(2). According to CAPR, the CAO Team was a "governing body" because itwas a "committee" ofthe Council that "acted on behalfof the Council.7 Therefore, CAPR contends that a "meeting" occurred for OPMA's purposes each time the CAO Team met and "acted on behalfofthe Council, regardless of how many councilmembers were present. 

### The OPMAdoes not define the phrase "acts on behalfof."8 OPMAdefines "action" as "the transaction ofthe official business of a public agency by a governing body including but not limited to receipt of public testimony, deliberations, discussions, considerations, reviews, evaluations, and final actions." RCW 42.30.020(3). Applying common law principles of agency, amici argue that a committee "acts on behalfof a governing body when ittakes "action" as defined in RCW 42.30.020(3) on behalf ofthe principal and under the principal's control. CAPR and amici thus argue that the CAO Team "acted on
7Because CAPR did not allege that the CAO Team ever conducted hearings or took testimony or public comment, that portion of RCW 42.30.020(2) is not at issue. 8OPMA as originally passed in 1971 did not contain this phrase. The previous definition of "governing body" was "the multimember board, commission, committee, council, or other policy or rule-making body of a public agency." Former RCW 42.30.020 (1971). The statute was amended in 1983 to add the phrase "or any committee thereofwhen the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment." RCW 42.30.020(3).

10No. 70606-3-1/11
behalf ofthe Council because ittook "action" by conducting ordinance-related deliberations, discussions, considerations, and other business subject to the Council's control. 

### There is no Washington case law directly addressing the circumstances 

### under which a committee "acts on behalfof a governing body.9 However, a 1986 

### Attorney General Opinion (AGO)10 specifically analyzed this question. The AGO stated that there are two possible interpretations of the phrase "acts on behalf of." First, "a committee might act on behalf of the governing body whenever it 

### performs a specifiedfunction in the interest of the governing body." AGO at 5. Under this broad definition, a committee would be subject to the OPMA 

### whenever itmeets and takes "action," just as governing bodies do. This is the 

### interpretation CAPR and amici urge us to adopt. Second, "acommittee might act on behalf of the governing body onlywhen it exerts power or influence or 

### produces an effect as the representative ofthe governing body." jd. Underthis
narrower definition, "a committee acts on behalfof the governing body only when 

### itexercises actual or de facto decision making authority for the governing body." \± This is the interpretation the County urges us to adopt.

9InClark v. Citv ofLakewood. 259 F.3d 996, 1013 (9th Cir. 2001), the Ninth Circuit held 

### that OPMA applied to a taskforce thattook public testimony, held hearings, andacted on behalf ofthegoverning body. The courtconcluded thattheseactivities placed it "squarely within the ambit ofRCW 42.30.020(2) without addressingthe circumstances underwhich a committee "acts on behalfof a governing body. 10AGO 1986 No. 16.

11No. 70606-3-1/12
The AGO acknowledged that the statutory mandate for liberal construction supports the broad definition, but nevertheless concluded that "the narrower 

### construction correctly reflects the intent ofthe legislature." jd. First, the AGO noted that the phrase "when the committee acts on behalfofthe governing body, 

### conducts hearings, or takes testimony or public comment" would be superfluous ifall committees were subject to the OPMA. The AGO observed that ifthe 

### legislature intended a broad interpretation of the phrase "acts on behalfof," it would have used the word "action" instead of "acts" and added the words "or any 

### committee thereofto the definition of "governing body," thereby subjecting a committee to the OPMA on the same basis as the governing body itself- when 

### "action" is taken, jd at 6. Second, the AGO carefullyexamined the legislative 

### history ofthe 1983amendments to the definition of"governing body," which 

### suggest thatthe Legislature did not intend OPMA toapply tocommittees that"do nothing more than deliberate the making ofpolicy orrules." AGO at 6. 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 policy, testimony, or comments are made in its behalf. In other words, it's when making policy or rules, not for general comments or any kind of informal type meeting thev may 

### have. Those would not require the official formal notice. AGO at 7.

12No. 70606-3-1/13 Thus, based on the narrower definition, the AGO concluded that "a committee acts on behalfofthe governing body when itexercises actual or de facto decision making authority for the governing body. This is in contrast to the situation where the committee simple provides advice or information to the governing body." AGO at 7. Advisory committees would not be subject to OPMA. jd. at 8. We find the AGO persuasive, and adopt its reasoning. CAPR and amici argue that the trial court erred in relying on Loeffelholz v. CLEAN.. 119 Wn. App. 665, 82 P.3d 1199 (2004) and concluding that the CAO Team could not have "acted on behalf of the Council because there is no 

### evidence it had policy or rule making authority. In Loeffelholz. the plaintiffargued that election workers were a "governing body" because the county canvassing 

### board delegated its authority to them. The court, citing Refai v. Central Washington Univ.. 49 Wn. App. 1,13, 742 P.2d 137 (1987), held that the election 

### workers could not be a "governing body" unless they had "policy-making or rule 

### making authority." Loeffelholz. 119 Wn. App. at 704. According to CAPR and amici, Loeffelholz is incorrect because Refai was based on the old definition of 

### "governing body," which was limited to a "board, commission, committee, council,
or other policy or rule-making body of a public agency. . .." Former RCW 42.30.020(2) (1983). The Refai court acknowledged in dicta that a "stronger 

### case" can be made for advisory bodies to be subject to OPMA underthe new 

### definition of "governing body."]d. at 14, n.5. To the extentthat a committee might exercise de facto decision making authority without being formally designated as

13No. 70606-3-1/14 a policy or rule-making body, this argument does not lack merit. Ultimately, however, it is irrelevant, because the trial court correctly relied on the 1986 AGO and concluded there is no evidence that the CAO Committee exercised actual or de facto decision making authority. First, CAPR submitted no admissible evidence that the Council created 

### the CAO Team or delegated its decision making authority11. CAPR claims that the County's public participation plan proves that the Councilcreated the CAO Team. This is incorrect. The plan merely includes a list of individuals responsible 

### for establishing the CAO Team, including the County administrator, the County 

### prosecutor, three members of the Council, and several otherindividuals. CAPR also points to the testimony of San Juan CountyPlanning Coordinator Shireene Hale, who testified that the Council"would have created it." CP at 380. But the trial court properly granted the County's motion to strike this statement as 

### hearsay, as there was no showing that she had personalknowledge totestify to this belief. Furthermore, Council member Lovel Pratt testified that the County Administrator created the CAO Team, and five Council Members submitted

11 CAPR's assertion that the trial court "determined that the Council created the CAO Subcommittee" isplainly incorrect. Appellant's Reply Briefat 10.Thetrial courtsimply stated that it"can furtherassume, for the sake of argument, and without deciding, that the committee was established by thecounty council, as opposed to thecounty administrator. In pointoffact, there appears to be no competentevidencein therecord to indicate that the committee was 

### established by thecounty council " CP at818. The trial courtthen stated thatitsdecision would be the same regardless ofwhetherthecouncil or thecounty administratorcreated the team.

14-No. 70606-3-1/15


### declarations stating that they took no action to create the Team or to delegate authority to the Team.12 The trial court further concluded that even assuming for the sake of argument that the County could direct the CAO Team to act on its behalf, there is
no evidence in the record indicating that it did so. CAPR contends that it did, pointing to County Prosecutor Randall Gaylord's memo, in which he stated that "[d]uring the course of committee meetings, ideas and policies are brought forward, discussed, narrowed and discarded and approaches are formulated for 

### making presentations ofsubcommittee work to the entire Council." CP at 453. CAPR also cites County planner Shireene Hale's statement that "this group was 

### trying to take care ofsome of the behind the scenes details so that the Council - the full Council could focus on making policy decisions and having substantive 

### discussions and givingthe staff direction on what they wanted to see." CP at 409. Even viewed inthe lightmost favorable to CAPR, these statements do not 

### provideevidence that the CAO Team exercised actual or de facto decision making authority. Rather, they describe an advisory or information role.

12 CAPR contends that the trial court erred in granting the County's motion to strike Hale's statement and denying its motion to strike the declarations of the CountyCouncil members. We disagree. The County properlyrequested that the Court strike all inadmissible hearsay from CAPR'sdeclarations, and Hale's statement was clearly hearsay. CAPR'sassertion that the County'smotion to strikewas nottimely is particularly unconvincing, where the record shows that CAPRrequested and was granted a motion to shorten time in order to file its own motion to strike, and the court considered the County's motion to strike at the same time. VRP (4/19/2013) at 3-4. Thetrial courtalso properly deniedCAPR's motion tostrike theCouncil members' statements, as they did not conflict with previous testimony.

15-No. 70606-3-1/16
In sum, we adopt the reasoning of the 1986 AGO and hold that a committee "acts on behalfof a governing body when itexercises actual or de facto decision making authority. Because CAPR submitted no evidence that a 

### majority ofthe Council attended CAO Team gatherings or that the CAO Team exercised actual or de facto decision making authority, no "meeting" occurred for 

### OPMApurposes, and summaryjudgmentwas appropriate. Because CAPR is not the prevailing party, it is not entitled to an award ofattorney fees.
Affirmed.

WE CONCUR: 

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