Expectations of Confidentiality and OPMA Executive Sessions

A governing body subject to the Open Public Meetings Act (OPMA) is allowed to go into executive sessions to review and discuss certain specific subjects outlined in RCW 42.30.110, such as claims (or potential claims) against the agency for property or other damages, or complaints or charges brought against a public officer or employee.

This blog will review the confidentiality of information discussed during an executive session, and the expectations that those involved in the discussion will keep this information private.

Background

The purpose of an executive session is to allow a confidential discussion of matters that could be detrimental to the local government, its officers, or its employees — if these matters were to be discussed in public. Consider the following examples:

• A city is being sued and the ability to effectively defend against the lawsuit could be compromised if its position were openly discussed in a council meeting.
• A port commission needs to review and evaluate a sensitive issue involving an employee's performance, but it also needs to protect that employee's privacy.

Preserving confidentiality in an executive session also promotes effective discussion. If the members of the body are concerned that what they say in executive session might be disclosed afterwards, they may be reticent to freely discuss matters.

Confidentiality in Executive Sessions

An Attorney General Opinion (AGO 2017 No. 5) was issued on August 3, 2017, that provided instruction on the confidentiality of executive sessions. Questions addressed in this opinion include the following:

• Is information learned in a properly convened executive session generally confidential?
• Is there a violation of the code of ethics for municipal officers if an officer discloses confidential information from an executive session?
• Could an officer who improperly discloses confidential information learned during an executive session be charged with a misdemeanor?
• Is information generally confidential?

Analyzing the OPMA and the authority it provides to exclude the public from meetings during the consideration of certain statutorily named subjects, the AGO concluded that participants in an executive session have a duty under the OPMA to keep information from the session confidential, provided the session was properly called and the information involved was within the scope of the purpose for it (i.e., the limited purposes as defined in RCW 42.30.110).

However, information shared from an executive session that previously has been publicly discussed would not be considered confidential, nor would any information discussed at the executive session which fell outside the meeting scope.

Is there a violation of the code of ethics for municipal officers?

The AGO concluded that disclosure of confidential information from an executive session by a municipal officer violates RCW 42.23.070(4), which states:

No municipal officer may disclose confidential information gained by reason of the officer's position, nor may the officer otherwise use such information for his or her personal gain or benefit.

The statute prohibits both the disclosure of confidential information and its use for personal gain or benefit. Relying upon the language of RCW 42.52.010(5), the opinion defines “confidential information” as “(a) specific information, rather than generalized knowledge, that is not available to the public on request or (b) information made confidential by law.”

Information learned from an executive session is information not available to the public and is made confidential by the OPMA, so disclosure by a municipal officer would be a violation of RCW 42.23.070(4), a provision of the code of ethics for municipal officers.

Could the violating official be charged with a misdemeanor?

While the AGO indicates that a charge under either RCW 42.20.100 (Willful neglect of duty) or RCW 9A.80.010 (Official misconduct) could possibly be brought, it concluded that a violation would be difficult to prove since criminal intent would need to be shown and proved beyond a reasonable doubt.

Local approaches to protect confidentiality

Additionally, the AGO further suggests that it might be possible for a governing body to address the confidentiality of its executive sessions (including penalties for violating confidentiality) through its own ordinances or rules. 

A few examples of jurisdictions that have adopted specific rules dealing with confidential information include the cities of Marysville and Renton. Marysville Municipal Code (MMC) Sec. 2.80.045 imposes a duty of confidentiality on city officials and employees:

The city imposes the duty of every city employee, city advisor, and city council member to maintain his confidence on any city business or information pertaining to the city of which he has knowledge regardless whether that knowledge is gained in his or her normal work…

And MMC Sec. 2.80.050 provides the following penalty for ethics code violations by councilmembers:

Any elected official found guilty of a negligent violation of this chapter is subject to a civil penalty of loss of pay not to exceed one month's salary.

In a similar vein, Renton Municipal Code Sec. 1-5-2(C) states:

In the event of any executive session as hereinabove specified, no member of the City Council, employee of the City, or any other person present during executive session of the City Council, shall disclose to any person the content or substance of any discussion or action which took place during said executive session, unless a majority of the City Council shall authorize such disclosure.

Additionally, Renton’s ethics code prohibits the disclosure of confidential information gained by way of one's official position (see Sec. 1-6-6) and makes a violation a misdemeanor, punishable by a fine and/or jail sentence.

Confidentiality is Breached, Now What?

Although confidential information discussed in an executive session should stay confidential, sometimes that does not happen. A member of the governing body may purposely or inadvertently divulge what was discussed. What can or should be done?

There are a few options that may be available for dealing with the improper disclosure of a confidential executive session discussion. One possible sanction might be for the other members to censure the offending member, which means to publicly rebuke them for violating the meeting’s confidential nature.

As stated by the AGO discussed above, the statute RCW 42.23.070(4) could arguably apply to an improper disclosure of confidential information. A violation of that statute can result in a penalty of $500, in addition to such other civil or criminal liability that might be imposed upon the officer by law and may be grounds for forfeiture of office (see RCW 42.23.050). It is also possible that disclosure of confidential information may constitute “misfeasance” or “malfeasance” in office or a “violation of the oath of office,” which could provide grounds for recall under RCW 29A.56.110. (See Teaford v. Howard, 104 Wn. 2d 580, and In re Roberts, 115 Wn. 2d 551).

While "confidential information" is not defined in RCW 42.23.070(4), AGO 2017 No. 5 has made it clear that anything discussed under the scope of the executive session would be considered confidential. But if a governing body discussed matters outside of the scope of the executive session — or the reason the executive session was called — that information would not be considered confidential.

Conclusion

Although discussions in executive session may be considered confidential, they may not be confidential indefinitely. It may be that information obtained in an executive session can reasonably be disclosed at some later point, after the purpose for the executive session no longer exists.

Violating the confidentiality of an executive session might expose the jurisdiction to potential financial loss and may also erode trust and collegiality among governing body members. Such behavior should be taken seriously, and a local government should seek legal advice from its agency’s legal counsel about specific executive session confidences.

MRSC maintains two webpages, Executive Session Basics and Executive Session FAQs, to provide an overview and to answer frequently asked questions MRSC has received on executive sessions. You may also want to use our Ask MRSC consulting services.