3. Closed meetings or executive sessions

The public may be excluded from executive sessions.  See A.R.S. § 38-431(2) (defining “executive session” as “a gathering of a quorum of members of a public body from which the public is excluded for one or more of the reasons prescribed in section 38-431.03”).  In addition to members of the public body, specific employees and appointees, and the auditor general, “only individuals whose presence is reasonably necessary in order for the public body to carry out its executive session responsibilities may attend the executive session.”  Id.

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The Open Meetings Act creates limited exceptions to the open meetings rule.  Section 2-575(b) specifies the following reasons justifying the closing of a meeting:

(1)   A law or court order requires that a particular matter or proceeding not be public;

(2)   To discuss, establish, or instruct the public body's staff or negotiating agents concerning the position to be taken in negotiating the price and other material terms of a contract, including an employment contract, if an open meeting would adversely affect the bargaining position or negotiating strategy of the public body;

(3)   To discuss, establish, or instruct the public body's staff or negotiating agents concerning the position to be taken in negotiating incentives relating to the location or expansion of industries or other businesses or business activities in the District;

(4)   (A) To consult with an attorney to obtain legal advice and to preserve the attorney-client privilege between an attorney and a public body, or to approve settlement agreements; provided, that, upon request, the public body may decide to waive the privilege.

(B) But nothing in the Act shall be construed to permit a public body to close a meeting that would otherwise be open merely because the attorney for the public body is a participant;

(5)   Planning, discussing, or conducting specific collective bargaining negotiations;

(6)   Preparation, administration, or grading of scholastic, licensing, or qualifying examinations;

(7)   To prevent premature disclosure of an honorary degree, scholarship, prize, or similar award;

(8)   To discuss and take action regarding specific methods and procedures to protect the public from existing or potential terrorist activity or substantial dangers to public health and safety, and to receive briefings by staff members, legal counsel, law enforcement officials, or emergency service officials concerning these methods and procedures; provided, that disclosure would endanger the public and a record of the closed session is made public if and when the public would not be endangered by that disclosure;

(9)   To discuss disciplinary matters;

(10) To discuss the appointment, employment, assignment, promotion, performance evaluation, compensation, discipline, demotion, removal, or resignation of government appointees, employees, or officials;

(11) To discuss trade secrets and commercial or financial information obtained from outside the government, to the extent that disclosure would result in substantial harm to the competitive position of the person from whom the information was obtained;

(12) To train and develop members of a public body and staff;

(13) To deliberate upon a decision in an adjudication action or proceeding by a public body exercising quasi-judicial functions; and

(14) To plan, discuss, or hear reports concerning ongoing or planned investigations of alleged criminal or civil misconduct or violations of law or regulations, if disclosure to the public would harm the investigation.

D.C. Code Ann. § 2-575.

Agencies subject to the Act are not permitted to exclude the public from any portion of any meeting unless authorized to do so by a specific statutory exception, O.C.G.A. § 50-14-1(b)(1), and then only by majority vote taken in a properly noticed and open meeting, § 50-14-4(a). Further, at a minimum, the person presiding over the meeting must execute and file with the official minutes of the meeting a notarized affidavit stating under oath that the subject matter of the closed portion of the meeting was devoted to matters within a specified legal exception to the Act. § 50-14-4(b)(1). Exceptions to the Act must be narrowly construed. Decatur Cty. v. Bainbridge Post Searchlight, Inc., 280 Ga. 706, 707, 632 S.E.2d 113, 116 (2006).

In 2017, the KOMA provision related to executive session was amended so that a governing body may recess into executive session only after making a motion, which is seconded, containing (1) [a] statement describing the subjects to be discussed during the closed or executive meeting; (2) the justification listed in subsection (b) for closing the meeting; and (3) the time and place at which the open meeting shall resume.  K.S.A. 75-4319(a). In Kansas Attorney General Opinion 2018-1, the Attorney General addressed what constituted a “statement describing the subjects to be discussed.”  That office found that:

“[A] public body or agency must do more than provide a generic or vague summary, or a list of the subject(s) to be discussed. However, the KOMA does not require that the statement describing what will be discussed to be so detailed that it negates the usefulness of a closed or executive meeting. The determination of whether a motion to recess into a closed or executive meeting sufficiently describes the subject(s) to be discussed in a specific situation is a fact sensitive question which must be determined on a case-by-case basis.”

Kan. Att’y Gen. Op. 2018-1.

“Justification” refers to one of the topics identified in K.S.A. 2017 Supp. 75-4319(b) such as, for example, personnel matters of nonelected personnel.  Kan. Att’y Gen. Op. 2018-1.  A total of 15 justifications are available to the agency under K.S.A. 75-4319(b). 

The time and place the meeting shall resume “may not stretch across multiple days,” and “a closed or executive meeting must be held contemporaneously with an open meeting.”  Kan. Att’y Gen. Op. 2017-20.

A motion to recess into executive session helps assure the public that the executive session is permissible and in the public interest, and it may also remind the members of the public body of the limitations upon and purpose served by executive session discussion.  See Kan. Att’y Gen. Op. 91-78.

“No binding action shall be taken during closed or executive recesses, and such recesses shall not be used as a subterfuge to defeat the purposes of this act.”  K.S.A. 75-4319(c); see also Kan. Att’y Gen. Op. 91-31. However, members of a body may reach a consensus in executive session. O'Hair Bd. of Educ. v. Unified Sch. Dist. No. 300, 15 Kan. App. 2d 52, HN 10, 805 P.2d 40 (1990).  A “consensus” may constitute binding action and violate KOMA if a body fails to follow up with a formal open vote on a decision that would normally require a vote. City of Topeka v. Watertower Place Dev. Grp., 265 Kan. 148 (1998).

A public agency may permit individuals who will assist with discussion in an executive session. However, "mere observers" cannot attend executive sessions. Kan. Att’y Gen. Op. 1992-56.

Executive session review of a public record by an entity subject to the Kansas Open Meetings Act (KOMA) does not alter the nature of or laws applicable to disclosure of that record.  Kan. Att’y Gen. Op. 95-119.

Under the Open Meetings Act, all meetings are presumed to be open to the public unless specifically exempted by a provision of the Open Meetings Act at Ky. Rev. Stat. 61.810(1)(a) through (n).

All meetings must begin as open meetings, but they may go into executive sessions.

The Montana open meetings law requires the keeping of minutes for meetings that are closed, including the same information as is recorded for an open meeting. Mont. Code Ann. § 2-3-212(4). These minutes are confidential but may be opened for public inspection upon a court order.  There is no penalty or remedy for failure to provide notice of any closed meeting; however, before closing a meeting the presiding officer of the governmental body must balance the demands of individual privacy against the merits of public disclosure to determine that closure is warranted.  If the determination is in error, any decisions made in the illegally closed meeting may be voided and the entity may be ordered to pay attorney fees.

 The exceptions to the general requirement that government’s official meetings be open are set out below and permit––but do not require––the closing a portion of an official meeting for one of the limited purposes.  It should be noted that there are very few statutes that actually require that a meeting be closed.

 

1-25-2.   Executive or closed meetings––Purposes––Authorization––Misdemeanor

 

Executive or closed meetings may be held for the sole purposes of:

 

(1)  Discussing the qualifications, competence, performance, character or fitness of

any public officer or employee or prospective public officer or employee. The term

"employee" does not include any independent contractor;

 

(2)   Discussing the expulsion, suspension, discipline, assignment of or the educational

program of a student or the eligibility of a student to participate in interscholastic

activities provided by the South Dakota High School Activities Association;

 

(3)   Consulting with legal counsel or reviewing communications from legal counsel

about proposed or pending litigation or contractual matters;

 

(4)   Preparing for contract negotiations or negotiating with employees or employee

representatives;

 

(5)   Discussing marketing or pricing strategies by a board or commission of a business

owned by the state or any of its political subdivisions, when public discussion may

be harmful to the competitive position of the business.

However, any official action concerning such matters shall be made at an open official meeting. An executive or closed meeting shall be held only upon a majority vote of the members of such body present and voting, and discussion during the closed meeting is restricted to the purpose specified in the closure motion. Nothing in § 1-25-1 or this section may be construed to prevent an executive or closed meeting if the federal or state Constitution or the federal or state statutes require or permit it. A violation of this section is a Class 2 misdemeanor.

The Act makes limited provision for executive sessions but provides no procedural guidelines for such meetings or sessions.

Under certain circumstances, a closed meeting is permitted under the Act. However, before a governmental body can meet in a closed session, a quorum of the body first must convene in an open meeting for which proper notice has been given. Id. § 551.101. The presiding officer must then publicly announce that a closed session will be held and identify what sections of the Act authorize the holding of such a session. Id.; see also Lone Star Greyhound Park Inc. v. Texas Racing Comm'n, 863 S.W.2d 742, 747 (Tex. App.—Austin 1993, pet. denied) (holding that failure to identify the section number of the exemption not fatal, where the presiding officer announced a briefing by "our legal staff" and reference to the content of the exemption provided sufficient identification of the applicable section of the Act). Notice of the attorney consultation exemption does not require disclosure of the "particulars of litigation" since this would defeat the very purpose of the exemption. Id.; see also Cox Enter. Inc., 706 S.W.2d at 959 (A governmental body "is not expected to disclose litigation strategy."). If one of the exceptions to the Act does not apply and the governmental body holds a closed meeting anyway, then the closed meeting is violative of the statute regardless of whether that body complied with the procedural steps. Finlan, 888 F. Supp. at 783. In addition, a prior action taken in violation of the Act may not be retroactively ratified. Mayes, 922 S.W.2d at 204 (although the governmental body may vote to take the same action as it originally intended to do at the prior meeting, that action may not be given retroactive effect); Fielding v. Anderson, 911 S.W.2d 858, 864-65 (Tex. App.—Eastland 1995, writ denied) ("[T]he law is clear that a governmental body may not ratify its prior illegal acts.").

A closed session of a public meeting may be continued only until the following day. Op. Tex. Att’y Gen. No. JC-0285 (2000). The continuation must be announced in open session on both the day of the original meeting and the new date of the meeting. Op. Tex. Att’y Gen. No. JC-0285 (2000) (citing Op. Tex. Att’y Gen. No. DM-482 (1998). The continuation of a closed session to any day other than the following day would require a re-posting of the session's notice. Id. A final action, decision, or vote on a matter deliberated in a closed meeting may only be made in an open meeting that is held in compliance with the notice provisions. Tex. Gov’t Code§ 551.102; Thompson v. City of Austin, 979 S.W.2d 676, 685 (Tex. App.—Austin 1998, no pet.).

 

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