2. Disciplinary matters, performance or ethics of public employees

Meetings of governmental bodies may be closed to discuss the job performance of certain public employees unless the person is an elected or appointed public official, an appointed member of a state or local board or commission, or a public employee who is one of the classification of public employees required to file a Statement of Economic Interests with the Alabama Ethics Commission pursuant to Alabama Code § 36-25-14. Ala. Code § 36-25A-7(a)(1).

Matters concerning discipline, performance problems, or alleged violations of ethics by public employees often fall into the category of "subjects that tend to prejudice the reputation and character of any person." A public body may, if it chooses, discuss such matters in executive session, provided that it satisfies the statutory requirement of providing that person with notice so he or she can decide whether to request a public discussion. Note, however, that other statutory provisions may limit this general rule, as in the case of disciplinary hearings for tenured teachers or school administrators, which the school board by law may close altogether at the request of the teacher. See AS 14.20.180(b). Of course, if the meeting at which disciplinary or related issues are being discussed is an adjudicatory proceeding, where the public body is serving a quasi -judicial function, the portion of that meeting which is conducted solely to make a decision is not covered by the Open Meetings Act, and can be closed with or without the consent of the individual in question. Cf., Griswold v. City of Homer, 55 P.3d 64, 73 (Alaska 2002).

The Supreme Court also recognized the right of public officials to discuss sensitive personnel matters in closed-door executive sessions, in the context of a meeting of the Haines Borough School Board regarding whether to retain an elementary school principal, who requested that the Board discussion regarding her retention take place in executive session. von Stauffenberg v. Committee for Honest and Ethical Sch. Bd., 903 P.2d 1055, 1060, n.13 (Alaska 1995). Other statutes govern the stage at which proceedings are presumptively open. In the case of a complaint under the Alaska Executive Branch Ethics Act concerning the governor, lieutenant governor or attorney general, all meetings of the personnel board concerning the complaint and investigation before the determination of probable cause are closed to the public. See, 39.52.340(a), and compare AS 24.60.17 (l, m) (proceedings of the Legislative Ethics Committee relating to complaints before it are generally public after the committee determines that there is probable cause to believe that a violation has occurred, and confidential until then). See Open Records Guide, section II.B.17.

(This section is blank. See the point above.)

The FOIA’s personnel exemption permits, but does not require, an executive session to consider the “promotion, demotion, [or] disciplining of any public officer or employee.” Ark. Code Ann. § 25-19-106(c)(1). Thus, a governing body may meet in executive session to consider disciplining an employee, Ark. Op. Att’y Gen. No. 81-213; to review an employee’s performance, if that review may lead to demotion or changed compensation, Ark. Op. Att’y Gen. No. 88-058; or to take a non-binding “vote of confidence” with respect to an employee, if the purpose of the meeting is to determine whether disciplinary action will be taken, Ark. Op. Att’y Gen. No. 91-280. Other statutes may also provide for closed meetings. E.g., Ark. Code Ann. § 6-17-208(b)(1)(C)(ii) (school board meeting to hear appeal of employee grievance “shall be open or closed at the discretion of the employee”); § 25-17-208(b) (meetings to consider certain personnel matters by boards and commissions whose members receive no compensation).

Closed under both Acts. A body may hold a closed session to evaluate performance or to hear charges or complaints against a public employee. Cal. Gov't Code §§ 11126(a) (Bagley-Keene Act), 54957(b)(1) (Brown Act). “‘[T]o consider the . . . evaluation of performance’ clearly is meant to extend to all employer consideration of an employee’s discharge of his or her job duties after ‘appointment’ or ‘employment’ of the employee, up to (but excluding) ‘discipline’ or ‘dismissal’ of the employee.” Duval v. Bd. of Trustees, 93 Cal. App. 4th 902, 909, 113 Cal. Rptr. 2d 517 (2001). The public employee must be given 24 hours advance notice of his or her right to have complaints or charges heard in an open session, otherwise any action taken against the employee is null and void. Cal. Gov't Code §§ 11126(a)(2)(Bagley-Keene Act), 54957(b)(2)(Brown Act). This notice provision has been held not to apply to a closed session to consider or deliberate on whether complaints or charges brought against an employee justify dismissal or disciplinary action, but to meetings “to hear”—as in a proceeding where witnesses are heard and evidence presented—the complaints or charges against the employee. Bollinger v. San Diego Civil Serv. Comm’n, 71 Cal. App. 4th 568, 574-75, 84 Cal. Rptr. 2d 27 (1999) (closed session to consider whether to affirm demotion recommendation did not require notice to employee and thus action could not be nullified where prior public evidentiary hearing was afforded employee); Kolter v. Comm’n on Prof’l Competence of the Los Angeles Unified Sch. Dist., 170 Cal. App. 4th 1346, 1352, 88 Cal. Rptr. 3d 620 (2009) (closed hearing to consider whether charges against employee justified initiation of dismissal proceedings did not trigger notice provision where employee was thereafter provided public evidentiary hearing on charges). However, another court has held that a legislative body must give an employee notice and an opportunity for an open session before a meeting to discuss the findings of an arbitrator regarding the possible firing of the employee, even if no vote is taken at that discussion meeting, and the notice given for the subsequent "ceremonial" meeting where the legislative body voted to fire the employee did not satisfy the requirement or cure the previous violation. Morrison v. Housing Auth. of the City of Los Angeles Bd. of Comm’rs, 107 Cal. App. 4th 860, 876-76, 132 Cal. Rptr. 2d 453 (2003); see also Moreno v. City of King, 127 Cal. App. 4th 17, 28-29, 25 Cal. Rptr. 3d 29 (2005) (receiving accusations against employee and considering whether to dismiss employee based on those allegations in a closed session triggered the notice requirements). Additionally, an employee does not have the right to notice and a public session with regard to a personnel evaluation or negative comments about the employee's performance. Bell v. Vista Unified Sch. Dist., 82 Cal. App. 4th 672, 683, 98 Cal. Rptr. 2d 263 (2000); Furtado v. Sierra Cmty. Coll., 68 Cal. App. 4th 876, 882, 80 Cal. Rptr. 2d 589 (1998). A legislative body may meet in closed session to discuss the criteria for evaluating an employee. Duval, 93 Cal. App. 4th at 909.

The Brown Act provides that a closed session shall not include discussion or action on proposed compensation except for a reduction of compensation that results from the imposition of discipline. Cal. Gov't Code § 54957(b)(4).

Meetings of a state public body to consider appointment or employment of public officials or employees or the dismissal, discipline, promotion, demotion, compensation of, or charges or complaints against public officials or employees are open unless the public applicant, official, or employee requests an executive session. Colo. Rev. Stat. § 24-6-402(3)(b). However, at least one court has held that a meeting to discuss the employment status of and possible disciplinary options against the director of a county building and land use department did not need to be open because it constituted "day to day" supervision of an employee within the "supervision of employees" exception.  Arkansas Valley Publ’g Co. v. Lake Cty. Bd. of Cty. Comm’rs, 369 P.3d 725, 726-28 (Colo. App. 2015) (involving allegations of criminal activity by director during work hours). Meetings of local public bodies to consider similar matters with respect to public employees (not public officials) are closed unless the subject of the executive session requests that it be conducted as an open meeting. Colo. Rev. Stat. § 24-6-402(4)(f).

An executive session is allowed for “discussion concerning the appointment, employment, performance, evaluation, health, or dismissal of a public officer or employee . . . .” Conn. Gen. Stat. §1-200(6). Note that the public officer or employee can require the above discussion to be held at an open meeting. Conn. Gen. Stat. §1-200(6). The filling of a board of education vacancy under Conn. Gen. Stat. §10-219 has been held to constitute an “appointment” under §1-200(6)(A). Bd. of Educ. v. FOIC, 213 Conn. 216, 566 A.2d 1362 (1989). See also Dortenzio v. FOIC, 48 Conn. App. 424, 710 A.2d 801 (1998) (predisciplinary conference for public employee under Loudermill, 470 U.S. 532, is excluded from the definition of meeting as “an administrative or staff meeting of a single-member public agency.”)

Disciplinary meetings are closed unless the public employee requests an open meeting. 29 Del. C. § 10004(b)(8), (9).

A meeting, or portion of a meeting, may be closed to discuss disciplinary matters or the performance evaluation of government appointees, employees, or officials.  D.C. Code Ann. § 2-575(b)(10).

Meetings of a public board or commission which relate to the discipline of a public employee must be open to the public pursuant to section 286.011. See Times Publ’g Co. v. Williams, 222 So. 2d 470, 474 (Fla. 2d DCA 1969) (hearings relating to charges of misconduct of a public employee may not be exempt from Sunshine Law based on public or privacy rights of the employee); Op. Att’y Gen. Fla. 77-132 (1977) (county personnel council may not deliberate in private prior to deciding whether or not to take disciplinary action against an employee); Op. Att’y Gen. Fla. 79-1 (1979) (section 286.011 prohibits the governing body of a municipal housing authority from excluding the executive director and other members of the authority’s staff from a public meeting in which the board discusses personnel matters, regardless of whether members of the news media or public are in attendance).

However, the legislature may provide for statutory exemptions for disciplinary hearings of certain personnel. Tribune Co. v. Sch. Bd. of Hillsborough Cnty, 367 So. 2d 627 (Fla. 1979) (a special act giving a teacher the option of an open or closed hearing during a disciplinary proceeding is a valid legislative exception to section 286.011); see also Fla. Stat. § 395.0193(7) (2020) (exempting proceedings of committees and governing bodies of hospitals or ambulatory surgical centers licensed in accordance with Ch. 895 which relate to disciplinary actions).

The Act permits agencies to go into executive session when discussing or deliberating—but not to vote upon—disciplinary action or dismissal, or periodic evaluation or rating of a public officer or employee. O.C.G.A. § 50-14-3(b)(2). But the Act specifically provides that this exception does not apply to the receipt of evidence or when hearing argument on personnel matters, including whether to impose disciplinary action or dismiss a public officer or employee or when considering or discussing matters of policy regarding the employment or hiring practices of the agency. Id.

Meetings involving such matters may be closed "where consideration of matters affecting privacy will be involved, provided that if the individual concerned requests an open meeting, an open meeting shall be held. . . ." Haw. Rev. Stat. § 92-5(a)(2).
When the Board of Education requested an opinion as to whether they were permitted to hold a closed meeting to develop employment criteria to be used in reviewing applicants for the job of Superintendent of Education, the attorney general informed them that the Sunshine Law does not contain any exemption for such meetings. A closed executive meeting can be held to consider the hire, evaluation, dismissal, or discipline of a specific individual, but this does not allow general discussions to be closed. Att'y Gen. Op. No. 75-11.
Likewise, meetings of the Civil Service Commission and the Commission staff to discuss the process used to evaluate police officers for promotion must be open to the public. The Civil Service Commission is a "board" as defined by the Sunshine Law and its meetings must generally be open. If the meeting is for the evaluation of a specific person, then the meeting may be closed. Honolulu Corp. Counsel Memo. Of Law No. M75-81 (Aug. 11, 1976).
However, the Corporation Counsel has held that the Promotion Potential Review Panel, which recommends promotion of Honolulu police officers, is not subject to provisions of the Sunshine Law because it was not created "by constitution, statute, rule, or executive order." Therefore, the Panel is not a "board" for purposes of the Sunshine Law. Honolulu Corp. Counsel Memo. Of Law No. M76-101 (Oct. 14, 1976).

An executive session may be held to consider the evaluation, disciplining of, or to hear complaints or charges brought against, a public officer, employee, staff member, or individual agent, or public school student. Idaho Code § 74-206(1)(b).

Open. Unless the following apply:

Closed if it involves a specific employee, specific individuals who serve as independent contractors in a park, recreational, or educational setting, or specific volunteers of the public body or against legal counsel for a public body. 5 ILCS 120/2(c)(1).

Closed regarding the discipline or formal peer review of physicians or other health care professional. 5 ILCS 120/2(c)(17).

Closed: Professional ethics or performance when considered by an advisory body appointed to advise a licensing or regulatory agency on matters germane to its field of competence. 5 ILCS 120/2(c)(16).

An executive session is permitted for the governing body of a public agency to receive information about a public employee’s alleged misconduct and to discuss, prior to any determination, that person’s status as an employee for certain professions. Ind. Code § 5-14-1.5-6.1(b)(6). See Town of Merrillville v. Peters, 655 N.E.2d 341, 343 (Ind. App. 1995) (holding that a closed police disciplinary hearing was a valid executive session and that the closed hearing did not violate due process); Berry v. Peoples Broad. Corp., 547 N.E.2d 231, 233–34 (Ind. 1989) (holding that the local sheriff’s merit board law prevailed over the Open Door Law’s executive session provisions).

Dependent upon whether closed session necessary to prevent needless and irreparable injury to reputation and individual request for closed session. Iowa Code § 21.5(1)(i).

These may be closed to the public. K.S.A. 75-4319(b)(1); Kan. Att’y Gen. Ops. 1975-203, 1992-51. The purpose of the "personnel matters" exception within K.S.A. 75-4319(b)(1) is to protect privacy rights of employees, to save personal reputations, and encourage qualified people to seek governmental employment. Walker v. Bd. of Educ., 21 Kan. App. 2d 341, 900 P.2d 850 (1995); see above, “Requirement to state statutory authority for closing meetings before closure.”

May be closed by agency or opened at employee's request. See Ky. Rev. Stat. 61.810(1)(f).

The vote by a board of education to demote a school principal did not need to be held in public. Miller v. Board of Educ., 610 S.W.2d 935 (Ky. Ct. App. 1980).

Generally, such matters are not exempt. However, they may be closed only if discussing the character, professional competence or physical or mental health of the person. La. Rev. Stat. Ann. § 42:17(A)(1). See also Op. Att'y Gen. 94-561 (La. State Board of Certified Social Work examining must hold disciplinary hearings in public).

In general, disciplinary matters or performance evaluations may be closed to the public on the theory that public discussion “could reasonably be expected to cause damage to the individual’s reputation.”  1 M.R.S.A. § 405(6)(A).

Meetings that concern the appointment, employment, assignment, promotion, discipline, demotion, compensation, removal, resignation, or performance evaluation of appointees, employees or officials over whom the entity has jurisdiction or any other personnel matter affecting one or more specific individuals may be closed. § 3-305(b)(1).

Disciplinary hearings are normally closed although the employee may insist they be open. G.L. c. 30A, § 21(a)(1). Once disciplinary proceedings are complete, the minutes of any executive sessions involved should be made public. Foudy v. Amherst-Pelham Reg'l Sch. Comm., 402 Mass. 179, 521 N.E.2d 391 (1988).

A public body may meet in a closed session "[t]o consider the dismissal, suspension, or disciplining of, or to hear complaints or charges brought against, or to consider a periodic personnel evaluation of, a public officer, employee, staff member, or individual agent, if the named person requests a closed hearing. Mich. Comp. Laws Ann. § 15.268(a).

Under the 1990 amendment, a public body may close a meeting to "evaluate the performance of an individual who is subject to its authority." The public body must identify the person to be evaluated prior to closing the meeting. Thereafter, the public body must summarize its conclusions regarding the evaluation. The meeting may be open at the request of the individual who is the subject of the meeting. Minn. Stat. § 13D.05, subd. 3(a).

Furthermore "a public body shall close one or more meetings for preliminary consideration of allegations or charges against an individual subject to its authority." If the body concludes that discipline may be warranted, further meetings or hearings relating to those specific charges or allegations must be open. The meeting must also be open at the request of the individual who is the subject of the meeting. Minn. Stat. § 13D.05, subd. 2(b).

Exempt. See § 25-41-7(4)(a).

Meetings relating to hiring, firing or disciplining employees of public governmental bodies can be closed when information relating to the performance or merit of the individual employee is discussed.  Mo.Rev.Stat. § 610.021(3).

Generally, disciplinary matters may be discussed in private unless the employee waives the right of privacy. However, if the offense charged constitutes a breach of the employee’s fiduciary duties, there is no expectation of privacy and the meeting should be open. The public has a clear and unambiguous right to know the information involved in the internal investigation of a public employee for any alleged violation of any policy, law or rule. The Montana Supreme Court has made it very clear that “internal investigations” of law enforcement personnel (and other public employees) must be fully disclosed to the public while the investigation is ongoing, as well as when it concludes. The outcome of the investigation into the alleged wrongdoing is not relevant. See particularly Great Falls Tribune v. Cascade County Sheriff, 238 Mont. 103, 775 P.2d 1267 (1989); Citizens to Recall Whitlock v. Whitlock, 255 Mont. 517, 844 P.2d 74 (1992); Bozeman Daily Chronicle v. City of Bozeman Police Dept., 260 Mont. 218, 859 P.2d 435 (1993). In each of cases, the court found that the individual officer, public employee or elected official has very little expectation of privacy, and the public has a fundamental right to know what public employees are doing.

Neb. Rev. Stat. §84-1410(1)(d) allows a public body to meet in closed session for "[e]valuation of the job performance of a person when necessary to prevent needless injury to the reputation of a person and if such person has not requested a public meeting."

May be closed. A person whose character, alleged misconduct, professional competence, or physical or mental health will be considered by a public body during a meeting may waive the closure of the meeting and request that the meeting or relevant portion thereof be open to the public. N.R.S. 241.030(2). The request must be honored unless the consideration of the character, alleged misconduct, professional competence, or physical or mental health of the requester involves the appearance before the public body of another person who does not desire that the meeting or relevant portion thereof be open to the public. NRS 241.030(2)(b) NRS 241.031(1)(a) provides that a public body shall not hold a closed meeting to consider the character, alleged misconduct or professional competence of: (a) an elected member of a public body; or (b) a person who is an appointment public officer or who serves at the pleasure of a public body as a chief executive or administrative office or in a comparable position, including, without limitation a president of a university or community college within the University and Community College System of Nevada, a superintendent of a county school district, a county manager and a city manager.

The disciplining of a public employee may be done in a nonpublic session under RSA 91-A:3,II(a).

All discussions regarding the employment or appointment of a public employee, including interviews, and all discussions regarding evaluation, promotion, disciplining or termination of a public employee may be held in closed session unless the employee requests a public meeting in writing. N.J.S.A. 10:4-12b(8). Even where a public employee is guaranteed by state statute a public hearing on termination, the public body may go into closed session to deliberate. See N.J.S.A. 10:4-12b(9); Della Serra, 196 N.J. Super. at 10-11. But where the public body is appointing a person to fill the unexpired term of an elected official, closure is not permissible. Gannett, 201 N.J. Super. at 68-69.  However, any time a public body intends to conduct a closed meeting involving the employment, appointment, termination of employment, terms and conditions of employment, evaluation of the performance of, promotion or disciplining of any specific public officer or employee, it must provide written notice in advance to the affected employee.  See Rice, 155 N.J. Super. at 71; Kean Fed’n of Teachers, 233 N.J at 586.

May be closed pursuant to NMSA 1978 § 10-15-1(H)(2).  In addition, public body may have adopted additional requirements or procedures for disciplinary hearings.

An executive session may be conducted to discuss matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation. N.Y. Pub. Off. Law § 105(1)(f) (McKinney 1988).

See Johnson Newspaper Corp. v. Howland, (Sup. Ct., Jefferson Cty., July 27, 1982) (committee of county board of supervisors investigating the conduct and performance of officers and employees of the county jail and sheriff’s department would be authorized to conduct executive sessions for matters stated to be under investigation); Jennings v. N.Y. City Council, No. 111597/05, 2006 WL 140399 (Sup. Ct., York Cty., Jan. 9, 2006) (board properly entered executive session to discuss possible discipline of a particular employee).

The Open Meetings Law expressly provides that a public body may meet in closed session to consider the “performance” of a public employee. A public body also may meet in executive session to hear or investigate “a complaint, charge or grievance” against a public officer or employee. G.S. § 143-318.11(a)(6). Therefore, to the extent that the basis for potential disciplinary action may stem from such a charge or complaint, such disciplinary matters may be discussed in executive session.

The statute permits executive sessions to discipline public employees or officials who are not elected, but bars executive sessions for the discipline or removal from office of elected officials. Ohio Rev. Code § 121.22(G)(1).

The statute does not explicitly address executive sessions to consider the "performance" or "ethics" of public employees. The statute does permit executive sessions to "consider" the "promotion, demotion, or compensation," or the "employment, dismissal," or "discipline" of public employees. Ohio Rev. Code § 121.22(G)(1). To the extent that considering promotion, demotion, employment, compensation, dismissal, or discipline includes evaluating an employee's ethics or performance, the statute permits executive sessions. Whether the authority for executive sessions extends to routine consideration of employee performance reviews is less clear, although it may fall within the scope of considering an employee's "employment."

• Public bodies may discuss appointments, hiring, employment, promotion, demotion, disciplining or resignation of a salaried public official or employee in a closed meeting. 25 O.S. § 307.B.1.
• The Oklahoma State Board of Medical Examiners may hold more than the minimum of two meetings per year to consider disciplinary hearings if the notice requirements of 59 O.S. § 488 and the Open Meeting Law are met. 1977 OK AG 251.
• The Oklahoma State Board of Public Accountancy is required to deliberate openly following a hearing on a complaint brought against a registrant for disciplinary action. The State Board of Public Accountancy may not confer in executive session with its attorney on legal issues raised during the conduct of an open hearing on disciplinary complaint. 1979 OK AG 32.
• “Job Content Evaluation Committees” created under 62 O.S. §§ 7.9 et seq.are “public bodies” within the meaning of the Open Meeting Act. 1981 OK AG 214.
• The “Council on Judicial Complaints” created under 20 O.S. §§ 1658 et seq.is covered under the Act except when “conducting, discussing or deliberating any matters relating to a complaint received or filed with the Council.” 25 O.S. § 304.1. The statute attempted to impose penalties against any complainant, witness or judge for disclosing any information about the complaint or testimony given in the proceedings but the Attorney General ruled such restrictions were unconstitutional. 2000 OK AG 15.

An executive session may be held.

Closed, so long as the ultimate result is voted on in a public meeting. In Mirror Printing Co., Inc. v. Altoona Area School Board, 609 A.2d 917 (Pa. Commw. Ct. 1992), for example, the school board was not required to disclose the subject matter of a disciplinary agreement involving a teacher when the agreement was reached in an executive session but was voted on in a public meeting.

Presumably closed pursuant to R.I. Gen. Laws § 42-46-5(a)(1).  However, employees may require the meeting to be public.  Id.

Discussion of discipline of an employee could be held in a session closed to the public. S.C. Code Ann. § 30-4-70(a)(1).

Closed. SDCL §1-25-2(1).

If conducted by a governing body, it must be open.

Section 551.082 permits closed sessions when school boards consider a “complaint or charge . . . brought against an employee of the school district by another employee and the complaint or charge directly results in a need for a hearing” unless an open hearing is requested in writing by the employee against whom the complaint or charge is brought.

These discussions would appear to be exempt under the Open Meetings Act because they involve “discussion of the character, professional competence, or physical or mental health of an individual.” Utah Code § 52-4-205(1)(a). However, an agency’s final decision about a disciplinary matter must be made in public. Id. § 52-4-204(3).

Closed. 1 V.S.A. § 313(a)(4).

Discussions concerning performance and discipline of specific individuals may be closed. Va. Code Ann. § 2.2-3711.A.1.

(This section is blank. See the point above.)

There is no provision other than the general exemption for discussing the employment of a public officer or employee. As noted, the 1989 legislature amended the statute to make employment contracts of public officials and employees available for public inspection and to remove them from the exception provided for personnel files. Wyo. Stat. § 16-4-203(d)(iii), as amended by Session Laws, 1989, Chapter 10. See, e.g., Wyo. Stat. § 16-4-405(a)(ii) (1977, Rev. 1982).