2. Only those between the public employees and the public body

No pertinent authority.

No state law at this time specifically requires negotiating sessions between public employees and a public body, as such, to be conducted publicly. There would seem to be a strong argument that to the extent that the negotiations included the requisite number of members of a governing body of a public entity to otherwise constitute a "meeting" under the Open Meetings Act, there is no reason to exclude a collective bargaining session from the coverage of the act. Since by definition both sides in the negotiation are present, the only ones being excluded are members of the public. The "other side" is already privy to the information.

The situation does not arise often, however, since public entities ordinarily conduct negotiations through management representatives. In any event, with the clarification of the number required to constitute a meeting under the 1994 revisions to the Open Meetings Act, unless there are more than three, or a majority, of the members of the governing body of the public entity engaged in the collective bargaining session, it would not constitute a meeting in any event.

There have been attempts at times to open the negotiating process to the public, and depending on their political and philosophical positions, and their perceived advantage of the moment, one side or the other will from time to time publicly call for open negotiating sessions. For example, a 1996 law governing public school teacher negotiations requires that before beginning bargaining, the school board shall provide opportunities for public comment on the issues to be addressed in the collective bargaining process, and further requires that initial proposals, last best-offer proposals, tentative agreements before ratification, and final agreements reached by the parties are public documents subject to inspection and copying by the public. AS 23.40.235. In the 1997 negotiations with the Anchorage School District, the NEA-Alaska, a representative of the teachers, went further and sought public negotiating sessions. Some preliminary sessions were in fact conducted publicly, but upon the intervention of a mediator this came to a halt. See also, for example, the controversy over whether to require open discussion of public employee negotiations by the Anchorage Municipal Assembly, and the Anchorage administration's proposal to require that all negotiations between labor unions and the city be open to public observation. See generally, news articles in Anchorage Daily News, October 8, 1988, at C-1, and Dec. 12, 1988, at C-1, and editorial in Anchorage Daily News, Oct. 12, 1988, at B-6; see also news articles in Anchorage Times, Oct. 7, 1988, at A-1, Oct. 8, 1988, at B-1, Oct. 12, 1988, at B-1, Dec. 3, 1988, at A-1, Dec. 7, 1988, at A-1, Dec. 13, 1988, at A-1, and Dec. 14, 1988, at A-1; editorials in the Anchorage Times, Dec. 6, 1988, Dec. 10, 1988, and Dec. 14, 1988; and an op-ed column by Anchorage Mayor Fink in the Anchorage Times, Dec. 10, 1988.

But “[d]iscussions or consultations with designated representatives of the public body in order to consider its position and instruct its representatives regarding negotiations with employee organizations regarding the salaries, salary schedules or compensation paid in the form of fringe benefits of employees of the public body” may be done in closed executive sessions.  A.R.S. § 38-431.03(A)(5); see Ariz. Att’y Gen. Op. No. I80-146.

If the negotiations occur at the “governing body” level, the meeting is open. See Ark. Op. Att’y Gen. No. 79-169 (suggesting that negotiations involving at least two members of the governing body). The FOIA’s personnel exemption does not apply to discussions of general salary matters, an across-the-board pay increase, or overall performance of employees. Ark. Op. Att’y Gen. Nos. 91-070, 77-144. Likewise, it should be inapplicable to a collective bargaining session.

Under the Brown Act, a legislative body may hold a closed session with its designated representatives regarding salary, salary schedules, or compensation paid in the form of fringe benefits of its representative and unrepresented employees, and, for represented employees, any other matter within the statutorily provided scope of representation. The legislative body must disclose the identity of its designated representative in open session prior to a closed session under Section 54957.6(a). Closed sessions with the local agency’s designated representative regarding salaries, salary schedules, or compensation paid in the form of fringe benefits may include discussion of an agency’s available funds and funding priorities, but only insofar as these discussions related to providing instructions to the local agency’s designated representative. Closed sessions shall not include final action on the proposed compensation of one or more unrepresented employees. Cal. Gov't Code § 54957.6(a). Under this Section, “employee” shall include an officer or an independent contractor who functions as an officer or an employee, but shall not include any elected official, member of the legislative body, or other independent contractor. Id., § 54957.6(b).

Local governments, including school boards, may meet in executive session to determine positions relative to issues that may be subject to negotiation, to receive reports on negotiations progress and status, to develop strategy, and to instruct negotiators. Colo. Rev. Stat. § 24-6-402(4)(e).

See above.

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

Not specifically addressed.

The Act does not exempt meetings concerning negotiations and collective bargaining of public employees.

A board may hold a closed meeting to "deliberate concerning the authority of persons designated by the board to conduct labor negotiations . . . or during the conduct of such negotiations." Haw. Rev. Stat. § 92-5(a)(3) (Supp. 1999).

Only sessions in which strategy regarding collective bargaining is discussed may be closed. Ind. Code § 5-14-1.5-6.1(b)(2). But if the adversary is present, an executive session cannot be held. Id. § 5-14-1.5-6.1(b). Accordingly, negotiations attended by a majority of the governing body of the public agency must be conducted in public. See id. Indiana Code Section 5-14-1.5-6.5 provides supplemental provisions regarding meetings between a governing body (or an authorized representative) and an employee organization (or an authorized representative).

The initial and second bargaining sessions, however, and arbitration hearings, are open to the public. Iowa Code § 20.17(3).

These can be closed “whether or not” they are in consultation with the body or agency. K.S.A. 75-4319(b)(3).

May be closed. See Ky. Rev. Stat. 61.810(1)(e).

The statute does not make this distinction.

Closed to the public unless both sides agree otherwise. 1 M.R.S.A. § 405(6)(D).

The Act makes no such distinction. § 3-305(b)(9).

The statutory exemption covers both collective bargaining sessions and meetings to "discuss strategy with respect to collective bargaining . . . if an open meeting may have a detrimental effect on the bargaining . . . position of the governmental body." G.L. c. 30, § 21(a)(3). This exemption also covers "strategy sessions in preparation for negotiations with non-union personnel" and "contract negotiations with non-union personnel." G.L. c. 30, § 21(a)(2). The collective bargaining exception has been extended to grievance hearings called for under collective bargaining agreements. Ghiglione v. Sch. Comm. of Southbridge, 376 Mass. 70, 378 N.E.2d 984 (1978); Bartell v. Wellesley Housing Auth., 28 Mass. App. Ct. 306, 550 N.E.2d 883 (1990).

The Public Employment Labor Relations Act (PELRA) provides that "negotiations, mediation sessions and hearings between public employers and public employees" are public meetings, "except when otherwise provided by the commissioner [of the Bureau of Mediation Services]." Minn. Stat. § 179A.14, subd. 3.

This statute has been construed to mean that a mediator may decide that a meeting is closed in his or her discretion, even if the meeting does not include both parties to the mediation process. Minnesota Education Association v. Bennet, 321 N.W.2d 395 (Minn. 1982) (citing to Minn. Stat. § 179.69, subd.2, which has since been repealed and replaced with § 179A.14, subd. 3, but which retains essentially the same language).

N/A

Not a basis for closing a meeting.

See above.

Closed. NRS 288.020.

Yes. See RSA 91-A:2,I.

Likewise, all negotiating sessions with public employees or their representatives may be conducted in private. N.J.S.A. 10:4-12b(4).

Both the collective bargaining sessions and meetings to discuss bargaining strategy preliminary to collective bargaining negotiations may be closed.  NMSA 1978 § 10-15-1(H)(5).

Not applicable. In North Carolina, public employees are prohibited by law from engaging in collective bargaining.

 

There is no statutory or case law addressing this issue (beyond the above).

As to the actual negotiations, if the negotiating entity has actual or de facto decision-making authority on behalf of the public body, then the negotiations must be open to the public. Int’l Ass’n of Firefighters, supra (negotiations between union and city manager not covered under Act because city manager lacked authority to bind city commission).

See above.

The exemption is not limited to sessions involving the public body and the public employees but also extends to sessions which only involve the public body.

There is no provision in the act for executive session for collective bargaining.

Closed. SDCL §1-25-2(4).

Yes.

The exemption for collective bargaining sessions is not limited to those between the public employees and the public body. See Utah Code § 52-4-205(1)(b).

Closed.  The Vermont Supreme Court recently held that the Open Meeting Law does not apply to labor negotiations between a district school board or its designee and the employees of the school district.  Negotiations Comm. of Caledonia Cent. Supervisory Union v. Caledonia Cent. Educ. Ass’n, 2018 VT 18, ¶ 33, 184 A.3d 236, 249 (Vt. 2018) (holding that the contract-bargaining negotiations are not “meetings” under the Open Meeting Law).

A board of supervisors may authorize its employees to meet and bargain with employee groups. Such negotiations are not required to be public. However, those between public employees and the public body are required to be open. 1974-1975 Va. Op. Atty. Gen. 22 (November 19, 1974).  See also Va. Code Ann. § 2.2-3701 (The gathering of employees of a public body shall not be deemed a "meeting" subject to the Act.)

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