Ctr. for Justice v. Arlington Sch. Dist.

• Decision Date: 04 September 2012
• Docket Number: No. 67263-1-I,67263-1-I
• Court: Washington Court of Appeals
• Parties: CENTER FOR JUSTICE, a non-profit corporation, Appellant, v. ARLINGTON SCHOOL DISTRICT, a Public Agency, Respondent.

CENTER FOR JUSTICE, a non-profit corporation, Appellant,

v.ARLINGTON SCHOOL DISTRICT, a Public Agency, Respondent.

No. 67263-1-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

FILED: September 4, 2012

UNPUBLISHED OPINION

Dwyer, J. — Center for Justice (CFJ) appeals from the superior court's order denying its claim that the Arlington School District's (the District) school board study sessions violated the Open Public Meetings Act of 1971, chapter 42.30 RCW, (OPMA), and from the trial court's order awarding CFJ attorney fees for its work on different claims upon which it prevailed. CFJ contends that the District violated the OPMA by providing notice of its study sessions according to the OPMA requirements for "special meetings," rather than its requirements for "regular meetings." However, because an applicable statute defines "regular meetings" as recurring meetings with dates fixed by law or rule and study sessions were not fixed by rule, they were properly characterized as special meetings for the purposes of the OPMA. CFJ also asserts that the trial court incorrectly calculated the award of attorney fees and requests that this court correct the award. Although the trial court abused its discretion by making anarithmetic error in calculating its award of attorney fees, this court does not substitute its judgment for that of the trial court. Remand to the trial court to appropriately exercise its discretion, as it sees fit, is the proper remedy. Accordingly, we affirm in part and reverse in part.

I

CFJ is a nonprofit organization, self-described as a public interest law firm. The District is a public agency located in Arlington, Washington.

The District's Board of Directors (Board) held regular bi-monthly meetings, termed "business meetings," between March 2006 and May 2008, the period relevant to this lawsuit. These meetings were properly noticed under the OPMA and are not at issue. In addition, the Board frequently held "study sessions" immediately preceding these business meetings (prior to 43 of 46 business meetings during the relevant period).¹ The Board's meeting policies are described in its official "Board Policy" documents, which are available on-line. The Board Policy contains the schedule for regular meetings and describes the notice procedure for special meetings, but does not mention study sessions. The District provided notice of the study sessions by sending agenda to Board members and to members of the media who had requested notification of special meetings.

The Board also held numerous executive sessions (closed proceedings within meetings), between 2006 and 2008. Prior to May 2007, the Board's practice for holding executive sessions on dates when it also held other meetings was to convene in executive session first, before beginning the study session or regular meeting. In May 2007, the Washington State Auditor's Office informed the District in an audit report that its executive session protocol did not conform to OPMA standards because the Board's executive sessions did not commence in an open session. It also recommended that the Board contemporaneously provide detailed information explaining the purpose of entering into executive session. The State Auditor's Office's files supporting its audit report specify that, in all other respects, the District complied with the OPMA. Beginning in July 2007, the Board started commencing its executive sessions in open meetings.

In March 2008, CFJ brought suit alleging various violations of the OPMA by the District.² In its amended complaint, CFJ alleged that the Board violated the OPMA by not providing proper notice of 38 study sessions occurring between March 2006 and February 2008. CFJ further alleged that the Board was continuing to hold improperly noticed study sessions at the time the action was commenced. CFJ also alleged that, during 2006 and 2007, the Board failed to conduct its executive sessions in compliance with the OPMA because theBoard did not begin the sessions in open public sessions and did not publicly announce proper purposes for the closed sessions. CFJ asserted that the District committed both violations on 21 occasions on which executive sessions were held during this period. CFJ relied on the State Auditor's Office report to identify most of these violations, using the report to identify actions in which the District failed to comply with the OPMA during the period covered by the audit. CFJ further alleged that the District continued its violations of the OPMA even after the Board amended its policy on executive sessions.

In its amended answer, the District admitted to the violations identified in the Auditor's report, but denied others. The 21 executive sessions allegedly involving OPMA violations corresponded to the compliance problems detected in the Auditor's report. The District did not contest either that it had not begun the 21 challenged executive sessions in open session or that it had not publicly announced a proper purpose for those closed meetings. In contrast, the District denied that it had failed to provide adequate notice of study sessions, alleged violations that were not identified in the Auditor's report.

The parties filed cross-motions for summary judgment.³ In its motion for summary judgment, CJF argued that the Board's study sessions were in fact regular meetings or, in the alternative, that they were special meetings but that proper special meeting notice had not been provided. The District maintained that it considered the Board's study sessions to be special meetings and had,accordingly, provided proper notice pursuant to the OPMA's requirements.

Problematically, CFJ alleged a number of violations in its motion for summary judgment that had not been asserted in its amended complaint. In its motion for summary judgment, CFJ asserted that the District violated the OPMA during 33 executive sessions, with up to three distinct violations per session: (1) failure to begin in an open public meeting prior to convening into an executive session; (2) failure to announce a proper purpose for convening to executive session; and (3) failure to announce an anticipated ending time prior to convening in executive session. It contended that 31 sessions involved all three violations and that two sessions involved two of the three types of violations. CFJ also listed more dates upon which it alleged that the District held improperly noticed study sessions, raising the number of study sessions at issue to 43. Overall, CFJ alleged 144 distinct OPMA violations for meetings held on 53 different dates between March 2006 and May 2008.⁴

The trial court granted the District's motion for summary judgment on the study session claims, holding that the study sessions were special meetings and that the District provided adequate notice pursuant to the OPMA requirements for special meetings.⁵

The trial court granted CFJ's summary judgment on the claims related toexecutive session violations alleged in the amended complaint, but not for the additional claims set forth for the first time in CFJ's summary judgment motion. Pursuant to applicable statute, the trial court awarded attorney fees to CFJ premised upon the executive session violations upon which it prevailed. To calculate a reasonable award of attorney fees, the trial court utilized the lodestar method, multiplying a reasonable hourly rate by the number of hours reasonably expended on the matter. The trial court multiplied the lodestar value by CFJ's "degree of success" in its attempt to reduce the amount of the award to reflect CFJ's limited success. The trial court calculated "degree of success" as being the number of claims won out of the total number of claims alleged, using executive session meetings as the unit for the numerator (21 executive session meetings for which CFJ prevailed), but using the total number of alleged violations as the unit for the denominator (144 total alleged violations in the motion for summary judgment). This resulted in a "degree of success" of 14.6 percent, which was then multiplied against the lodestar to determine the appropriate award of attorney fees.

CFJ appeals.

II

CFJ's primary contention is that the trial court erred by determining that the District complied with OPMA requirements by providing special meeting notice of study sessions. We disagree. Because the statute treats "regular meetings" as meetings held according to a schedule fixed by law or rule andexpresses no preference for the holding of regular meetings, CFJ's contention is unavailing.

Appellate review of the granting or denial of a motion for summary judgment is de novo, requiring the same inquiry as the trial court. Michak v. Transnation Title Ins. Co., 148 Wn.2d 788, 794, 64 P.3d 22 (2003). A trial court should grant summary judgment if the record shows no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Michak, 148 Wn.2d at 794-95. Additionally, the interpretation and construction of the OPMA is a question of law subject to de novo review. Wood v. Battle Ground Sch. Dist., 107 Wn. App. 550, 558, 27 P.3d 1208 (2001).

The OPMA requires that "[a]ll meetings of the governing body of a public agency [are] open and public." RCW 42.30.030. The OPMA is intended to facilitate the transparency of government decision-making. RCW 42.30.010; Cathcart v. Andersen, 85 Wn.2d 102, 107, 530 P.2d 313 (1975). As such, it must be "liberally construed." RCW 42.30.910. Under the OPMA, the scheduled day and time of "regular meetings" held by the governing body of a public agency must be provided by "ordinance, resolution, bylaws, or by whatever other rule is required for the conduct of business by that body." RCW 42.30.070. "Special meetings" may be held at any time and noticed by the delivery of written notice to each member of the governing body and to members of the media who have filed written requests to be notified of...