3. Dismissal, considering dismissal of public employees

Except for statutory provisions such as the following, and the exceptions in the Alabama Open Meetings Act itself, the meetings of entities that are subject to the Alabama Open Meetings Act should be open when dismissal or consideration of the dismissal of public employees is at issue:

a. Hearing regarding state merit employee's dismissal: Open upon timely demand in writing by the dismissed employee. Ala. Code § 36-26-27(a).

b. Hearing regarding public school teacher's termination: Open or closed at the option of the teacher. Ala. Code § 16-24C-8.

The main considerations that arise with respect to the dismissal or potential dismissal of a public employee are discussed in the preceding subsection concerning disciplinary matters or performance problems. These will commonly be an appropriate subject for executive session, subject to the obligation to provide the person notice and an opportunity to require that the session be conducted publicly unless the proceeding is an adjudication, where the body is meeting in its quasi-judicial capacity solely for the purpose of making a decision.

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

A governing body may meet in executive session to consider the “employment, appointment . . . or resignation of any public officer or employee.” Ark. Code Ann. § 25-19-106(c)(1). Although the discharge or dismissal of an employee is not specifically mentioned in the act, the Attorney General has opined that such action is “by necessity encompassed in employment, appointment, or resignation.” Ark. Op. Att’y Gen. No. 81-213. Other statutes may also provide for closed meetings. E.g., Ark. Code Ann. § 6-17-1509(c)(2)(A) (school board hearing under Teacher Fair Dismissal Act “shall be private unless the teacher or the board shall request that the hearing be public”); § 25-17-208(b) (meetings to consider certain personnel matters by state boards and commissions whose members receive no compensation).

Closed under both Acts. A body may hold a closed session to consider the dismissal of a public employee. Cal. Gov't Code §§ 11126(a) (Bagley-Keene Act); 54957(b)(1) (Brown Act). Under both Acts, the public employee must be given 24 hours advance notice of his or her right to have an open session, otherwise any action taken against the employee is null and void. Cal. Gov't Code §§ 11126(a) (Bagley-Keene Act), 54956.96(b)(2) (Brown Act).

Under the Brown Act, the legislative body must report any action taken in a closed session to affect the employment status of a public employee. Cal. Gov't Code § 54957.1(a)(5). An employee does not have the right to a 24-hour notice and public hearing option regarding dismissal if it is not based upon charges or complaint of misconduct. Moreno v. City of King, 127 Cal. App. 4th 17, 25 Cal. Rptr. 3d 29 (2005). If the legislative body terminates the public employee without giving the required notice in complaint cases, there is no cure; the termination is null and void. Id. at 28-29. The body shall report the information at the public meeting during which the closed session is held, and must disclose the title of the position. Cal. Gov't Code § 54957.1(a)(5); Moreno, 127 Cal. App. 4th at 27. However, the body shall report a dismissal or nonrenewal of an employment contract at the first meeting following the employee's exhaustion of administrative remedies. Cal. Gov't Code § 54957.1(a)(5).

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, 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).

See above.

Meetings regarding dismissal of a public employee are closed unless the employee requests the meeting to be open. 29 Del. C. § 10004(b)(8), (9).

A meeting, or portion of a meeting, may be closed to discuss the discipline, demotion, removal, or resignation of government appointees, employees, or officials.  D.C. Code Ann. § 2-575(b)(10).

A panel that meets to deliberate on the subject of an employee’s discipline or termination is a “board” or “commission” within the meaning of the Sunshine Act, Fla. Stat. § 286.011(1), where “the panel exercises decision-making authority”; it is a violation of the Sunshine Act for such a panel to conduct close-door deliberations regarding whether to terminate an employee.  Drascott v. Palm Beach Cnty., 877 So. 2d 8, 12, 14 (Fla. 4th DCA 2004); see also Deininger v. Palm Beach Cnty., 922 So. 2d 1102, 1102-03 (Fla. 4th DCA 2006) (reversing order denying certification of a class claim for violation of Fla. Stat. § 286.011(1) consisting of county employees who were terminated or disciplined by a panel that deliberated in private).  However, where a panel does not exercise decision-making authority (e.g., a panel that makes a recommendation on the record to an official that makes the ultimate decision to terminate), the panel is not a “board” or “commission” subject to the Act, and thus its deliberations may be behind closed doors.  Jordan v. Jenne, 938 So. 2d 526, 530 (Fla. 4th DCA 2006).

The Act permits agencies to go into executive session when discussing or deliberating—but not to vote upon—dismissal 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 dismiss a public officer or employee. Id.

Meetings can be closed if they "consider the . . . dismissal . . . of an officer or employee" where such consideration involves matters of privacy, unless the officer or employee requests an open meeting. Haw. Rev. Stat. § 92-5(a)(2).

An executive session may be held to consider the dismissal 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).

Presumably open unless 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).

An executive session is permitted for discussion of the discipline of public employees. 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).

The statute also authorizes executive sessions for discussing an individual employee’s job performance evaluation. Ind. Code § 5-14-1.5-6.1(b)(9); see also Guzik v. Town of St. John, 875 N.E.2d 258 (Ind. Ct. App. 2007) (holding that executive sessions are appropriate for discussing an individual employee’s job performance evaluation). However, this exemption does not apply to discussions of the salary, compensation or benefits of employees during a budget process. Ind. Code § 5-14-1.5-6.1(b)(9).

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); see Feller v. Scott Cty. Civil Servs. Comm’n, 435 N.W.2d 387 (Iowa Ct. App. 1988) (finding county civil service commission's denial of former deputy sheriff's request for closed hearing concerning circumstances of deputy sheriff's resignation was improper; exposure of allegations against deputy sheriff to public would cause needless and irreparable injury to deputy sheriff's reputation within community particularly in light of fact that there was no evidence that such allegations had anything to do with his job performance).

A public body may recess into executive session to discuss dismissal of individual employees. K.S.A. 75-4319(b)(1); 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).

Where a disciplinary hearing has been scheduled, the city acted improperly when it refused to grant the employee's request that the hearing be open and public. Reed v. City of Richmond, 582 S.W.2d 651 (Ky. Ct. App. 1979).

Generally, such dismissals 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).

In general, deliberation or consideration of dismissal of public employees 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).

Dismissal proceedings are normally closed although the employee may insist they be open. G.L. c. 30, § 21(a)(1); Bartell v. Wellesley Housing Auth., 28 Mass. App. Ct. 306, 550 N.E.2d 883 (1990). As to dismissal of tenured teachers, see G.L. c. 71, § 42. Major layoffs for budgetary reasons do not fall within exception and should be considered publicly. Doherty v. Sch. Comm. of Boston, 386 Mass. 643, 436 N.E.2d 1223 (1982).

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).

Unless the dismissal is considered or decided as part of a meeting to evaluate the performance of an individual who is subject to a public body’s authority, such meetings should be open. Minn. Stat. § 13D.05, subd. 3(a).

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.

Neb. Rev. Stat. §84-1410(1)(d) allows 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, but vote to dismiss employee must occur in an open meeting. McKay v. Board of Supervisors, 102 Nev. 644, 730 P.2d 438 (1986). See NRS. 241.030(2) supra.

The dismissal or promotion 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 subject to closed meetings pursuant to NMSA 1978 § 10-15-1(H)(2).

An executive session may be conducted to discuss suspension, dismissal or removal of a particular person or corporation. N.Y. Pub. Off. Law § l05(1)(f) (McKinney 1988). See Sanna v. Lindenhurst Bd. of Educ., 58 N.Y.2d 626, 444 N.E.2d 975, 458 N.Y.S.2d 511 (1982) (upholding school board’s decision to dismiss a teacher even though made at improperly convened executive session); Plattsburgh Publishing Company v. City of Plattsburgh, 586 N.Y.S.2d 346 (3d Dep’t 1992) (discussion of job performance and employment history in closed session is permitted even though personnel action results from fiscal constraints); Smithson v. Ilion Housing Authority, 130 A.D.2d 965, 516 N.Y.S.2d 564 (4th Dep’t 1987) (board of commissioners had the authority to enter into executive session to vote on the dismissal of the executive director of the housing authority); Tri-Village Publishers v. St. Johnsville Bd. of Educ., 110 A.D.2d 932, 487 N.Y.S.2d 181 (3d Dep’t 1985) (executive session may be held to accept resignation of school superintendent and grant severance pay); Kloepfer v. Comm’r of Educ., 82 A.D.2d 974, 440 N.Y.S.2d 785 (3d Dep’t 1982), aff’d 56 N.Y.2d 687, 436 N.E.2d 1334, 451 N.Y.S.2d 732 (1982) (executive session to discuss appeal of a tenure hearing decision of dismissal was permissible under the OML); Becker v. Town of Roxbury, No. 83-142 (Sup. Ct., Delaware Cty., Apr. 1, 1983) (executive session held by town board to consider abolition of town constable position was in violation of the OML, as the OML only permits closed discussions which focus on particular individuals or corporations); Orange Cty. Publications v. City of Middletown, No. 5685/78 (Sup. Ct., Orange Cty., Dec. 26, 1978) (executive session held to discuss budgetary lay-offs of municipal personnel was in violation of OML, as lay-offs were primarily budgetary matters and not personnel matters); Bogulski v. Erie Cty. Medical Center, No. 97/95 (Sup. Ct., Erie Cty., Jan. 13, 1998 (executive session held by hospital board to discuss layoffs held to violate OML, as OML only permits closed discussions which focus on particular persons or corporations).

Again, G.S. § 143-318.11(a)(6), which permits a public body to meet in executive session to assess the performance and fitness of a public officer or employee, clearly implies that the dismissal of the employee may be discussed in executive session. The same section also provides, however, that “final action making an appointment or discharge or removal by a public body . . . shall be taken in an open meeting.”

The statute permits executive sessions to consider the dismissal of public employees or officials. However, the statute bars executive sessions for the discipline or removal from office of elected officials for conduct related to that official's performance of official duties. Ohio Rev. Code § 121.22(G)(1).

Governing bodies may go into closed session to discuss dismissal of an employee. 1968 OK AG 231. However, a public body may not dismiss an employee on a vote taken outside the public meeting or within an executive session. 1981 OK AG 69.

An executive session may be held.

Closed, so long as the final result is voted on in public. However, in Philadelphia Newspapers, Inc. v. Ambler Borough Council, No. 87-0725 (Mont. Cty. Ct. C.P., May 26, 1987), a judge held that a hearing on a council member’s absences from a council meeting did not involve a “personnel matter” and must be open to the public. A water treatment expert serving as a consultant to a governmental sewer authority is not an “employee or public officer” and thus the Sewer Authority could not meet in executive session to discuss his termination. Easton Area Joint Sewer Auth. v. The Morning Call, Inc., 581 A.2d 684 (Pa. Commw. Ct. 1990).

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

A discussion regarding dismissal 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.  A Civil Service Commission was not a governing body under the Act.  Therefore, its deliberation over an employee’s termination was not a meeting under the Act. Redmon v. City of Memphis, 2010 Tenn. App. LEXIS 122 (Tenn. Ct. App. Feb. 19, 2010).

Generally, an employee or public officer who is the subject of deliberations under Section 551.074 has a right to an open hearing, but he cannot insist on a closed hearing. Op. Tex. Att’y Gen. No. JM-1191 (1990) (stating that the Open Meetings Act permits, but does not require a school board of trustees to hold an executive closed session to consider a teacher’s grievance); Mayes, 922 S.W.2d at 203 (“[T]ermination of a city’s police chief is a matter of special interest to the public that does not fall into the category of ordinary personnel matters.”).

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 demotion, discipline, or resignation of specific individuals may be closed. Va. Code Ann. § 2.2-3711.A.1.

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

See, e.g., Wyo. Stat. § 16-4-405(a)(ii) (1977, Rev. 1982).