Inquiry: May a city council review of the city manager’s performance happen in an executive session?
Response: It looks like the annual evaluation of a city manager may take place during an executive session under the authority of RCW 42.30.110(1)(g). However, if a city is considering termination of a city manager’s appointment, then a resolution, notice to the city manager, and, if requested, a public hearing is required under RCW 35A.13.130 and RCW 35A.13.140.
Here is an excerpt from a recent MRSC inquiry response about executive sessions and city council evaluations of city managers:
For city council evaluations of city managers, RCW 42.30.110(g) of the OPMA allows an executive session to be convened to discuss the performance of a public employee or official. There is how the Attorney General’s Open Government Resource Manual describes the provision – this provides a bit more insight into the purpose of the provision:
(g) Evaluating Qualifications or Performance of a Public Employee/Official
There are two different purposes under this provision for which a governing body may meet in executive session. For both purposes, the references to “public employment” and to “public employee” include within their scope public offices and public officials, so that a governing body may evaluate in executive sessions persons who apply for appointive office positions, such as state university president or city manager, as well as for employee positions.
The first purpose involves evaluating the qualifications of applicants for public employment. This could include personal interviews with an applicant, discussions concerning an applicant’s qualifications for a position, and discussions concerning salaries, wages, and other conditions of employment personal to the applicant. The authority to “evaluate” applicants in closed session allows a governing body to discuss the qualifications of applicants, not to choose which one to hire. Although this subsection expressly mandates that “final action hiring” an applicant for employment be taken in open session, this does not mean that the governing body may take preliminary votes in an executive session that eliminate candidates from consideration. Miller v. City of Tacoma (1999).
The second part of this provision concerns reviewing the performance of a public employee. This provision would be used typically either where the governing body is considering a promotion or a salary or wage increase for an individual employee or where it may be considering disciplinary action based on an employee’s performance. It should be distinguished from subsection (f), which concerns specific complaints or charges brought against an employee and which, at the request of the employee, must be discussed in open session.
The result of a governing body’s closed session review of the performance of an employee may be that the body will take some action either beneficial or adverse to the officer or employee. That action, whether raising a salary of or disciplining an officer or employee, must be made in open session.
When a discussion involves salaries, wages, or conditions of employment to be “generally applied” in the agency, it must take place in open session. However, if that discussion involves collective bargaining negotiations or strategies, it is not subject to the OPMA and may be held in closed session without being subject to the procedural requirements for an executive session in RCW 42.30.110(2). See RCW 42.30.140(4).
Inquiry: May a city manager review individual councilmembers?
Response: On the question of whether the city manager may provide feedback to councilmembers in an executive session, I agree with my colleague Oskar Rey’s April 2021 inquiry response to you. RCW 42.30.110(1)(g) authorizes executive sessions for the council to “to review the performance of a public employee.” Councilmembers are not public employees for most purposes. In general, it does not make sense for an appointed official who serves at the pleasure of the Council to review the job performance, either in executive session or in a public meeting, of individual councilmembers.
In addition, a councilmember with a complaint or charge against them could ask that it be considered in a public meeting rather than an executive session. RCW 42.30.110(1)(f) provides:
To receive and evaluate complaints or charges brought against a public officer or employee. However, upon the request of such officer or employee, a public hearing or a meeting open to the public shall be conducted upon such complaint or charge;
I recommend you consult with your city attorney. Let me know if you want to further discuss.
Linda Gallagher (she/her)
Legal Consultant
206.625.1300 x222