The Alabama Open Meetings Act defines "executive session" as "[t]hat portion of a meeting of a governmental body from which the public is excluded for one or more of the reasons prescribed in Section 36-25A-7(a)." Ala. Code § 36-25A-2(2).
Per Alabama Code § 36-25A-7, a governmental body may hold an executive session:
(1) to discuss the general reputation and character, physical condition, professional competence or mental health of individuals, or, subject to certain limitations;
(2) when expressly allowed by federal law or state law, to consider the discipline or dismissal of, or to hear formal written complaints or charges brought against a public employee, a student at a public school or college, or an individual, corporation, partnership, or other legal entity subject to the regulation of the governmental body;
(3) to discuss with its attorney the legal ramifications of and legal options for pending litigation, controversies not yet being litigated but imminently likely to be litigated if the governmental body pursues a proposed course of action or to meet or confer with a mediator or arbitrator with respect to any litigation or decision concerning matters within the jurisdiction of the governmental body involving another party, group, or body;
(4) to discuss security plans, procedures, assessments, measures, or systems, or the security or safety of persons, structures, facilities, or other infrastructures, including without limitation, information concerning critical infrastructure and critical energy infrastructure information the public disclosure of which could reasonably be expected to be detrimental to public safety or welfare (this includes data privacy security, Ala. Code § 8-38-3);
(5) to discuss information that would disclose the identity of an undercover law enforcement agent or informer or to discuss the criminal investigation of a person who is not a public official in which allegations or charges of specific criminal misconduct have been made or to discuss whether or not to file a criminal complaint;
(6) to discuss the consideration the governmental body is willing to offer or accept when considering the purchase, sale, exchange, lease, or market value of real property unless the transaction involves a personal interest of a member of the government body and the member participates or a condemnation action involving the real property is pending;
(7) to discuss preliminary negotiations involving matters of trade or commerce in which the governmental body is in competition with private individuals or entities or other governmental bodies in Alabama or in other states or foreign nations or to discuss matters or information of the character defined or described in the Alabama Trade Secrets Act;
(8) to discuss strategy in preparation for negotiations between the governmental body and a group of public employees; and
(9) to deliberate and discuss evidence or testimony presented during a public or contested case hearing and vote upon the outcome of the proceeding or hearing if the governmental body is acting in the capacity of a quasi-judicial body, and either votes upon its decision in an open meeting or issues a written decision which may be appealed to a hearing officer, an administrative board, court or other body which has the authority to conduct a hearing or appeal of the matter which is open to the public.
To convene an executive session, a governmental body must first convene a prearranged "meeting" as defined in Sections 36-25A-2(6)(a)(1) or (2). A majority of the members of the body present must adopt, by recorded vote, a motion calling for the executive session and setting out the purpose for convening the executive session. The vote of each member must be recorded in the minutes. The minutes do not need to reflect, line-by-line, the vote of each member to enter executive session if a roll call vote is taken and all members consent. Ala. Att’y Gen. Op. 2018-014. Prior to calling the executive session to order, the presiding officer must state whether the governmental body will reconvene after the executive session and, if so, the approximate time the body expects to reconvene. Ala. Code § 36-25A-7(b).
The OMA does not define "executive session." It obviously refers to a meeting closed to the public. What is not clear is whether and to what extent non-members can be allowed to attend executive sessions. E.g., can staff attend? Can a mayor or school superintendent? Apparently an attorney or labor negotiator may be present in an executive session, since the law prohibits taking action at an executive session, "except to give direction to an attorney or labor negotiator regarding the handling of a specific legal matter or pending labor negotiations." AS 44.62.310(b). Certain public entities are authorized by law to establish their own rules for compliance with open meetings principles, and have established grounds for convening in executive session that differ somewhat from the OMA requirements. See, e.g., AS 42.40.170(b) (Alaska Railroad Corporation).
Executive sessions may only be hold for the following purposes:
- Discussion or consideration of employment, assignment, appointment, promotion, demotion, dismissal, salaries, disciplining or resignation of a public officer, appointee or employee of any public body, except that, with the exception of salary discussions, an officer, appointee or employee may demand that the discussion or consideration occur at a public meeting. . . .
- Discussion or consideration of records exempt by law from public inspection, including the receipt and discussion of information or testimony that is specifically required to be maintained as confidential by state or federal law.
- Discussion or consultation for legal advice with the attorney or attorneys of the public body.
- Discussion or consultation with the attorneys of the public body in order to consider its position and instruct its attorneys regarding the public body’s position regarding contracts that are the subject of negotiations, in pending or contemplated litigation or in settlement discussions conducted in order to avoid or resolve litigation.
- Discussions 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.
- Discussion, consultation or consideration for international and interstate negotiations or for negotiations by a city or town, or its designated representatives, with members of a tribal council, or its designated representatives, of an Indian reservation located within or adjacent to the city or town.
- Discussions or consultations with designated representatives of the public body in order to consider its position and instruct its representatives regarding negotiations for the purchase, sale or lease of real property.
A.R.S. § 38-431.03(A); see City of Prescott, 166 Ariz. at 483, 803 P.2d at 894 (“This section is intended to establish an equilibrium between the public’s desire for access and the governmental agency’s need to act in private, short of reaching a collective decision, commitment or promise.”) (citation and internal quotation marks omitted); see also Shelby Sch. v. Ariz. State Bd. of Educ., 192 Ariz. 156, 167, 962 P.2d 230, 241 (Ct. App. 1998) (determining that the board appropriately deliberated over confidential credit records in an executive session).
When the validity of an executive session is challenged, the burden shifts to the public body to prove that the executive session did not violate the OML. Fisher v. Maricopa Cty. Stadium Dist., 185 Ariz. 116, 122, 912 P.2d 1345, 1351 (Ct. App. 1995).
“Legal action involving a final vote or decisions shall not be taken at an executive session, except that the public body may instruct its attorneys or representatives as provided in subsection A, paragraphs 4, 5 and 7 of this section.” A.R.S. § 38-431.03(D). A public body cannot hold an executive session merely because its attorney is present if the discussion is not for legal advice. City of Prescott, 166 Ariz. at 485, 803 P.2d at 896. “[A] consultation between a governmental entity and its attorney for legal advice is not legal action involving a final vote or decision, and . . . a governmental entity may therefore meet in executive session with its attorney to receive legal advice.” Id. (internal quotation marks omitted). “However, once the members of the public body commence any discussion regarding the merits of enacting the legislation or what action to take based upon the attorney’s advice, the discussion moves beyond the realm of legal advice and must be open to the public.” Id.; see Fisher, 185 Ariz. at 124, 912 P.2d at 1353 (“It is the debate over what action to take, including the pros and cons and policy implications, of competing alternative courses of action, that must take place in public.”).
An executive session is permissible when the FOIA or another statute so provides. Ark. Code Ann. § 25-19-106(a) & (c). The FOIA itself contains three exemptions. First, a governing body may hold a closed meeting “for the purpose of considering employment, appointment, promotion, demotion, disciplining, or resignation of any public officer or employee.” Ark. Code Ann. § 25-19-106(c)(1). Second, state boards and commissions may meet in executive session “for purposes of preparing examination materials and answers to examination materials . . . for licensure” and to administer the examinations. Id. § 25-19-106(c)(5)(A) & (B) (added by Act 1259 of 2001). Third, “a public agency may meet in executive session for the purpose of considering, evaluating, or discussing matters pertaining to public water system security or municipally owned utility system security as described in § 25-19-105(b)(18).” Id. § 25-19-106(c)(6)(A) (added by Act 763 of 2003). There are statutes that prohibit certain governing bodies from meeting in an executive session. See, e.g., Ark. Code Ann. §§ 13-3-203 (Black History Commission), 14-201-122 (municipal utility commission), 24-7-304 (Board of Trustees of Arkansas Teacher Retirement System).
Although both Acts permit closed sessions for specific and limited purposes, neither Act provides a specific definition of a "closed session" or an "executive session," but a closed session is not open to the public. For a list of the type of meetings that are categorized as closed sessions, or meetings to which the Acts do not apply, refer to section III ("Meeting Categories — Open or Closed").
An executive session is a closed meeting which is attended only by the members of the public body and, in some cases, by attorneys, witnesses, or persons who are the subject of the meeting or action to be taken by the body or other persons invited by the body. See Hudspeth v. Board of Cty. Comm'rs, 667 P.2d 115 (Colo. App. 1983); Einarsen v. City of Wheat Ridge, 43 Colo. App. 232, 604 P.2d 691 (1979); see also Colo. Rev. Stat. § 22-32-108(5) (executive sessions of school boards).
An executive session is defined in Conn. Gen. Stat. §1-200(6) as "a meeting of a public agency at which the public is excluded for one or more of the following purposes: (A) discussion concerning the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee, provided that such individual may require the discussion be held at an open meeting; (B) strategy and negotiations with respect to pending claims and litigation to which the public agency or a member thereof, because of his conduct as a member of such agency, is a party until such litigation or claim has been finally adjudicated or otherwise settled; (C) matters concerning security strategy or the deployment of security personnel, or devices affecting public security; (D) discussion of the selection of a site or the lease, sale or purchase of real estate by a political subdivision of the state when publicity regarding such site, lease, sale or purchase would cause a likelihood of increased price until such time as all of the property has been acquired or all proceedings or transactions concerning same have been terminated or abandoned; and (E) discussion of any matter which would result in the disclosure of public records or the information contained therein described in subsection (b) of section 1-210." In Rocky Hill Town Council v. FOIC, 4 CSCR 247 (1989), rev'd on other grounds, 20 Conn. App. 671, 569 A.2d 1149 (1990), the Superior Court held that an executive session was properly called to discuss a requested legal opinion from the agency's attorney on legal issues related to the agency's contemplated action on a public official's employment and compensation. In Bd. of Pub. Safety v. FOIC, No. CV010506448S, 2001 WL 1560944 (Conn. Super. Ct. Nov. 20, 2001), the court upheld the FOIC's determination that the Torrington Board of Public Safety had violated the terms of the FOIA by holding an executive session to discuss an individual's employment without first giving him the opportunity to require that such discussion be conducted in public in accordance with Conn. Gen. Stat. §1-200(6)(A). In Royce v. FOIC, No. CV000505232, 2001 WL 752722 (Conn. Super. Ct. June 11, 2001), the court held that member of a town's Board of Finance is a "public officer" within the meaning of Conn. Gen. Stat. §1-200(6)(A). In Brodinsky v. FOIC, No. CV030520584S, 2004 WL 3130229 (Conn. Super. Ct. Dec. 15, 2004), the court held that a town council member who had voted against holding executive session and subsequently voluntarily absented himself from the same executive session had not been "denied access" and did not have standing to appeal to the judicial system. In Police Commission v. FOIC, 2008 Conn. Super. LEXIS 123 (2008), the court discussed the interplay between Conn. Gen. Stat. §1-200(6)(E) and Conn. Gen. Stat. §1-210(b).
Attendance at executive sessions is limited to members of the public agency and persons invited by the agency to present testimony or opinion pertinent to matters before the agency. Conn. Gen. Stat. §1-231. The attendance of these invited persons must be limited to the period of time for which their presence is necessary to present such testimony or opinion, and when that time has expired, they must leave the executive session. Conn. Gen. Stat. §1-231(a). In City of Middletown v. von Mahand, 34 Conn. App. 772, 643 A.2d 888 (1994) the Appellate Court ruled that under Conn. Gen. Stat. §1-231(a) when an agency subpoenas a witness to testify in executive session, it implicitly invites his lawyer to attend as a matter of due process, and the agency cannot exclude the lawyer. In East Lyme Water and Sewer Comm'n v. FOIC, No. CV 96-0538605, 1997 WL 41241 (Conn. Super. Jan. 27, 1997), the Superior Court affirmed the decision of the FOIC and held that East Lyme had violated Conn. Gen. Stat. §1-231 when it allowed certain staff town officials and staff persons into executive session for the discussion of the outcome of a civil suit discussing the construction of a portion of the town's sewer system, where the staff members offered no testimony or opinions there.
An executive session is defined as a public meeting that is closed to the public. Executive sessions may be held only for the discussion of public business. 29 Del. C. § 10004(c). See Del. Op. Att'y Gen., No. 01-ib03 (Feb. 16, 2001) (concluding FOIA permits a public body to go into executive session to discuss labor negotiations or collective bargaining because the discussion of those issues may disclose the contents of documents exempted from disclosure under FOIA). It is the public body's burden to justify a decision to meet in executive session. 29 Del. C. § 10005(c). FOIA does not permit a "stand alone" executive session. Del. Op. Att'y Gen., No. 02-ib33 (Dec. 23, 2002).
The agenda must include but is not limited to a statement of intent to hold an executive session and the specific grounds for the executive session under the Act. 29 Del. C. § 10004(e)(2).
Location. Regularly scheduled meetings of a public body are required to be held within the geographic jurisdiction of that body. Thus a city, town or school district must hold its meetings within its district or the county in which its principal office is located. The geographic limitation on location of meetings is not applicable to emergency meetings necessary for the immediate preservation of public peace, health or safety or for the immediate preservation of public financial welfare. 29 Del. C. § 10004(g).
District of Columbia
The Open Meetings Act does not specifically define what makes a meeting "closed." However, the Act states that a meeting shall be deemed open to the public if 1) the public is permitted to be physically present; 2) the news media, as defined in D.C. Code Ann. § 16-4701, is permitted to be physically present; or 3) the meeting is televised. D.C. Code Ann. § 2-575(a). Presumably, any meeting that does not satisfy at least one of those conditions is considered closed.
In 1993, the Legislature created a narrow exception to the Sunshine Law permitting a governmental entity, its chief executive and attorney to meet in private if the entity is a party to pending litigation and the attorney desires advice concerning settlement negotiations or strategy. Fla. Stat. § 286.011(8).
Executive meetings are meetings closed to the public. “A board may hold an executive meeting closed to the public upon an affirmative vote, taken at an open meeting, of two-thirds of the members present; provided the affirmative vote constitutes a majority of the members to which the board is entitled.” Haw. Rev. Stat. § 92-4 (1996) (emphasis added).
Limited meetings are also closed to the public. A board may hold a limited meeting closed to the public provided that at a regular meeting prior to the limited meeting, the board determines that it is necessary to meet at a location that is dangerous to health or safety, specifies the reasons for such a determination and that two-thirds of all members to which the board is entitled vote to adopt the determinations and to conduct the meeting. Haw. Rev. Stat. § 92-3.1. The Director of the Office of Information Practices must concur in the determination that it is necessary to meet at a location that is dangerous to health or safety. Id. The board may not make any decisions at a limited meeting. Id.
A public body may hold a meeting closed to the public, or close a portion of a meeting to the public, upon a majority vote of a quorum present, taken at a meeting open to the public for which notice has been given as required by the Act. See 5 ILCS 120/2a. The Act states that "[n]othing in . . . [the] Act shall be construed to require that any meeting be closed to the public." 5 ILCS 120/2a.
An “executive session” is a meeting from which the public is excluded, except the governing body may admit those persons necessary to carry out its purpose. Ind. Code § 5-14-1.5-2(f); see also Ind. Code § 5-14-1.5-6.1 (providing statutory limitations on executive sessions); 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).
The Indiana Court of Appeals recently held that a school board’s deliberations in an executive session were not discoverable because compelling discovery would intrude upon the functions of the other branches of government. see Warren v. Bd. of Sch. Trs. of Springs Valley Cmty. Corp., 49 N.E.3d 559, 570 (Ind. Ct. App. 2015).
"[A] meeting, as defined in Sec. 28A.2(2) [now Sec. 21.2(2)], to which any member of the public is denied access by a governmental body." 79 Op. Att'y Gen. 430, 432 (Oct. 2, 1979).
If the purpose of the meeting is to “discuss strategy with counsel,” counsel must be present. Olinger v. Smith, 889 N.W.2d 476, 483 (Iowa Ct. App. 2015).
Although there is no provision in KOMA defining its terms, the Attorney General’s Office has recently defined and differentiated between the terms “recess” and “adjourn” in the context of entering into executive session. Kan. Att’y Gen. Op. 2017-20. There, the Attorney General opined that “[t]he term “recess,” as used in K.S.A. 2017 Supp. 75-4319(a), means a suspension of an open meeting. The term “adjourn,” as used in K.S.A. 2017 Supp. 75-4319(a), means ending an open meeting. A public body or public agency may only recess an open meeting to enter into a closed or executive meeting if the closed or executive meeting occurs contemporaneously with the open meeting. A public body or public agency has the discretion to designate the location of a closed or executive meeting if the location of the closed or executive meeting allows the public body or public agency to conduct the closed or executive meeting contemporaneously with the open meeting.” See also Kan. Att’y Gen. Op. 1996-14. Likewise, although KOMA does not define a “statement describing the subjects to be discussed,” the Attorney General has recently opined 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.”
The “justifications” for recessing into executing session are expressly defined in the statute. Proper justifications for recess include personnel matters of non-elected officials, privileged attorney-client matters, employer-employee negotiations, confidential financial or trade secrets, student disciplinary matters, preliminary discussions of real estate acquisitions, security of public buildings and personnel, and tribal-gaming compacts, security measures and records regarding child care facilities, maternity care and family daycare facilities. K.S.A. 75-4319(b).
A motion to recess into a closed or executive meeting may only utilize one justification as listed in K.S.A. 2017 Supp. 75-4319(b), but multiple subjects may be discussed if those subjects fall within the justification stated in the motion to recess into a closed or executive meeting. Kan. Att’y Gen. Op. 2018-1.
Only the members of a public body have the right to attend executive session. Kan. Att’y Gen. Ops. 87-170 (county clerk does not have right to attend); 86-143 (members of advisory boards do not have right to attend). Mere observers may not attend. Inclusion of general observers means the meeting should be open to all members of the public. Kan. Att’y Gen. Ops. 92-56; 86-143; 82-176. However, persons who aid the public body in their discussions may be admitted to the executive session. Kan. Att’y Gen. Ops. 91-31; 82-176; 80-43.
The Act permits sessions closed to the public under certain circumstances and permits the adjournment of an open session to a closed session. § 3-305(b). The presiding officer of the body must conduct a recorded vote on closing a meeting. § 3-305(d)(2)(i). A meeting may not be closed unless a majority of the body's members is present and votes in favor of closing the meeting. § 3-305(d)(1). The presiding officer must prepare a written statement of the reason for closing the meeting citing the authority that is the basis for closure and listing the topics to be discussed at the meeting. § 3-305(d)(2)(ii). Handley v. Ocean Downs, 151 Md. App. 615, 633, 827 A.2d 961, 972 (2003). Failure of a body to comply with these requirements provides a basis for declaratory or injunctive relief. See Suburban Hospital Inc. v. Maryland Health Resources Planning Comm'n., 125 Md. App. 579, 589, 726 A.2d 807, 812, n.3 (1999). The body is required to send a copy of this statement to the OMCB if a person objects to the closing of a session. § 3-305(d)(3). The written statement will become a matter of public record. § 3-305(d)(4).
The OMA contains no express definition of closed meetings. A person intruding upon a closed session of a public body may be forcibly removed by a law enforcement officer, or removal may be accomplished by recessing and moving the closed session to another location. 1985-86 Op. Att'y Gen. 268, 271 (1986).
The statute does not define a “closed meeting” itself, but rather the subject matter of meetings that are exempt from the provisions of the Open Meeting Law. Interestingly, executive sessions of any governing body are treated no differently than a meeting of the entire body. Minn. Stat. § 13D.01, subd. 1.
"Any public body may hold a closed session by the affirmative vote of a majority of its voting members if a closed session is clearly necessary for the protection of the public interest or for the prevention of needless injury to the reputation of an individual and if such individual has not requested a public meeting." Neb. Rev. Stat. §84-1410(1). Statute offers nonexclusive, illustrative examples of reasons for closed session. See Section II of this outline below.
Closed sessions may be held under a number of specific statutes. NRS 241.020. Where there is a specific statute authorizing a closed meeting, this statute prevails over the OML.
(1) By any public body to consider character, alleged misconduct, professional competence, or the physical or mental health of a person, with some exceptions, or to prepare, revise, administer, or grade examinations administered on behalf of the public body, or to consider an appeal by a person of the results of an examination administered on behalf of the public body. See NRS 241.030 and § 9.04.
(2) By the Public Employees Retirement Board: (1) to meet with investment counsel, provided the closed session is limited to planning future investments or the establishment of investment objectives and policies, and (2) to meet with legal counsel provided the closed session is limited to advice on claims or suits by or against the system. NRS 286.150(2).
(3) By the State Board of Pharmacy to deliberate on the decision in an administrative action (subsequent to a public evidentiary hearing) or to prepare, grade, or administer examinations. See NRS 639.050(3) and Op. Nev. Att’y Gen. No. 81-C (June 25, 1981).
(4) By any public body to take up matters or conduct activities that are exempt under the Open Meeting Law. See Part 4 of this manual. If the public body has other matters that must be considered in an open meeting, the Office of the Attorney General believes that a public body may take up an exempt matter during the open meeting if it desires. However, by virtue of the exemption, none of the open meeting requirements will apply to the exempt activity, although it is recommended that a motion or announcement be made identifying the activity as an exempt activity to avoid confusion between an exempt activity and a closed session to which certain open meeting requirements may otherwise apply.
(5) By public housing authorities when negotiating the sale and purchase of property, but the formal acceptance of the negotiated settlement should be made in an open meeting. See Op. Nev. Att’y Gen. No. 372 (December 29, 1966).
(6) As authorized by a specific statute. NRS 241.020(1).
Generally. The Statute permits public bodies to meet in "nonpublic session," only for matters set forth in RSA 91-A:3,II.
Nonpublic Sessions Authorized by the Statute.
The dismissal, promotion or compensation of any public employee or the disciplining of such employee, or the investigation of any charges against him, unless the employee affected (1) has a right to a meeting and (2) requests that the meeting be open in which case the request shall be granted. RSA 91-A:3, II(a). See Appeal of Plantier, 126 N.H. 500 (1985). (employee with a right to meeting must be given notice of the meeting and its purpose.); Johnson v. Nash, 135 N.H. 534 (1992) (public posting of meeting without indicating topics to be discussed insufficient). Note, discussions regarding a public official, as opposed to a public employee, do not qualify for this exemption.
"The hiring of any person as a public employee." RSA 91-A:3,II(b).
"Matters which, if discussed in public, would likely affect adversely the reputation of any person, other than a member of the body or agency itself, unless such person requests an open meeting. This exemption shall extend to any application for assistance or tax abatement or waiver of a fee, fine, or other levy, if based on inability to pay or poverty of the applicant.” RSA 91-A:3,II(c).
"Consideration of the acquisition, sale, or lease of real or personal property which, if discussed in public, would likely benefit a party or parties whose interests are adverse to those of the general community." RSA 91-A:3,II(d).
“Consideration or negotiation of pending claims or litigation which has been threatened in writing or filed against the public body or any subdivision thereof, or against any member thereof because of his or her membership in such public body, until the claim or litigation has been fully adjudicated or otherwise settled. Any application filed for tax abatement, pursuant to law, with any body or board shall not constitute a threatened or filed litigation against any public body for the purposes of this subparagraph.” RSA 91-A:3,II(e).
"Consideration of applications by the adult parole board under RSA 651-A. RSA 91-A:3,II(f).
"Consideration of security-related issues bearing on the immediate safety of security personnel or inmates at the county correctional facilities by county correctional superintendents or their designees. RSA 91-A:3,II(g).
"Consideration of applications by the business finance authority under RSA 162-A:7-10 and 162-A:13 where consideration of an application in public session would cause harm to the applicant or would inhibit full discussion of the application." RSA 91-A:3,II(h).
“Consideration of matters relating to the preparation for and the carrying out of emergency functions, including training to carry out such functions, developed by local or state safety officials that are directly intended to thwart a deliberate act that is intended to result in widespread or severe damage to property or widespread injury or loss of life.” RSA 91-A:3,II(i).
“Consideration of confidential, commercial, or financial information that is exempt from public disclosure under RSA 91-A:5, IV in an adjudicative proceeding pursuant to RSA 541 or RSA 541-A.” RSA 91-A:3,II(j).
A public body in New Jersey is permitted to go into closed session and exclude the public from attendance only when "discussing" nine specific subject matter areas. See N.J.S.A. 10:4-12b. These will be treated in detail in Section II below. Note that a closed session is limited to discussions; one case has held that a public body can debate an issue in closed session, but cannot act on it. Houman v. Pompton Lakes, 155 N.J. Super. 129, 382 A.2d 413 (Law Div. 1977).
As defined by the OML, an “executive session” is “that portion of a meeting not open to the general public.” N.Y. Pub. Off. Law § 102(3) (McKinney 1988). An executive session is permissible only in eight specific categories:
(1) matters which will imperil the public safety if disclosed;
(2) any matter which may disclose the identity of a law enforcement agent or informer;
(3) information relating to current or future investigation or prosecution of a criminal offense which would imperil effective law enforcement if disclosed;
(4) discussions regarding proposed, pending or current litigation;
(5) collective negotiations pursuant to article fourteen of the civil service law;
(6) the medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation;
(7) the preparation, grading or administration of examinations; and
(8) the proposed acquisition, sale or lease of real property or the proposed acquisition of securities, or sale or exchange of securities held by such public body, but only when publicity would substantially affect the value thereof.
A governing body may hold an executive session to consider or discuss closed or confidential records. Unless a different procedure is provided by law, an executive session that is authorized by law may be held if:
a. The governing body first convenes in an open session and, unless a confidential meeting is required, passes a motion to hold an executive session;
b. The governing body announces during the open portion of the meeting the topics to be discussed or considered during the executive session and the body’s legal authority for holding an executive session on those topics;
c. The executive session is recorded under N.D.C.C. § 44-04-19.2(5);
d. The topics discussed or considered during the executive session are limited to those for which an executive session is authorized by law and that have been previously announced; and
e. Final action concerning the topics discussed or considered during the executive session is taken at a meeting open to the public, unless final action is otherwise required by law to be taken during a closed or confidential meeting. “Final action” means a collective decision or a collective commitment or promise to make a decision on any matter, including formation of a position or policy, but does not include guidance given by members of the governing body to legal counsel or other negotiator in a closed attorney consultation or negotiation preparation session authorized in N.D.C.C. § 44-04-19.1.
N.D.C.C. § 44-04-19.2(2).
The remainder of a meeting during which an executive session is held is an open meeting, unless a specific exception applies. N.D.C.C. § 44-04-19.2(3).
A public entity may sequester all competitors in a competitive selection or hiring process from that portion of a public meeting wherein presentations are heard or interviews are conducted. N.D.C.C. § 44-04-19.2(6).
A caucus of members of either house of the legislative assembly may meet in an executive session that is not subject to N.D.C.C. § 44-04-19.2 if the meeting is not held on public property. N.D.C.C. § 44-04-19.3.
The statute does not define "executive session," but the definition in Black's Law Dictionary is "a session closed to the public." Ordinarily, a public body does not waive its right to call an executive session if it invites certain persons other than its members to attend for purposes related to the subject matter of the session. See Dayton Newspapers Inc. v. City of Dayton, 28 Ohio App. 2d 95, 274 N.E.2d 766 (1971).
Executive sessions may only be used to consider specific, enumerated topics found in R.C. 121.22(G). See State ex rel. Long v. Cardington Village Council, 92 Ohio St.3d 54, 59 (2001) (office violated R.C. 121.22(G)(1) by using general terms like “personnel” and “personnel and finances” to circumvent open meetings requirements, instead of one or more of the specified statutory purposes listed in division (G)(1)).
Where a city charter commands that all meetings shall be open, and does not provide for executive sessions, no executive sessions are allowed. State ex rel. Fenley v. Kyger, 72 Ohio St.3d 164, 648 N.E.2d 493 (1995).
A public body may not hold executive session unless specifically allowed in 25 O.S. § 307. However, the executive session provisions of the Act do not themselves create any legal privileges that require matters to be kept confidential and therefore, in any given instance in which an executive session may be held, the public body must determine whether an executive session is warranted. 1992 OK AG 23. Provisions of a "home rule" city charter requiring all meetings to be open must yield to the state law on executive sessions and thus the public body can go into executive session as allowed under state law. City of Kingfisher v. Oklahoma, 1998 OK CIV APP 39, 958 P.2d 170.
Under ORS 192.610(2) an executive session is a meeting or part of a meeting of a governing body that is closed to certain persons for deliberations on certain matters. Because the stated policy of the Public Meetings Law under ORS 192.620 is to require all meetings to be open to the public, a specific exemption from the requirements of openness must be present to justify an executive session. Those exemptions are set forth in ORS 192.660.
Who may attend executive sessions? Members of the public are not entitled to attend executive sessions, unless specifically permitted by the public body. Representatives of the news media are allowed to attend all executive sessions except for labor negotiations, sessions considering the expulsion of an elementary or secondary school student, and those sessions concerning litigation where the news media representative or his or her employer is a party to that litigation. ORS 192.660(4). The term “representatives of the news media” is not defined by the statute but has been interpreted by the Attorney General to include “news gathering representatives,” meaning reporters of news gathering media which “ordinarily report” activities of the public body. 39 Op. Atty. Gen. 600 (1979). In 2015, the Oregon Legislature amended ORS 192.660 to expressly provide that the Oregon Government Ethics Commission “may not adopt rules that establish what entities are considered representatives of the news media that are entitled to attend executive sessions.” ORS 192.660(10).
What material discussed at the executive session is privileged? A governing body may require that the legitimate subjects of an executive session not be disclosed outside the executive session. ORS 192.660(4). A public body’s belief that a reporter has violated executive session confidentiality is not justification for future exclusion of the reporter from executive sessions. If a member of the governing body discusses outside the executive session subjects covered in the executive session, the executive session confidentiality requirement does not apply. If the reporter develops the same information discussed at the executive session through independent means, this information may be reported even though it is also the subject of an executive session. If the executive session deals with matters which are not described by the executive session statute, such discussions are fair game and may be disclosed publicly even though the governing body may believe that it is conducting a confidential executive session discussion.
Action in executive session. ORS 192.660(6) makes clear that no final action or final decision may be taken during an executive session. All such actions must be made in a public session.
An executive session is a “meeting from which the public is excluded, although the agency may admit those persons necessary to carry out the purpose of the meeting.” 65 Pa. C.S.A. § 703. Discussions at which third parties are present are privileged only for the portions of the meetings at which such third parties are necessary. Kravco Co. v. Valley Forge Ctr. Ass’n, 1992 WL 157755 (E.D. Pa. July 1, 1992). For further discussion of executive sessions, see Section II.A.2.a below (Description of each exemption à Executive sessions).
Closed meetings must be limited to matters allowed to be exempted from discussion by the nine exemptions listed in the OML, which include: any discussion of job performance, character, or physical or mental health of a person; discussions related to collective bargaining or litigation; discussion related to security issues; discussions related to investigative proceedings regarding allegations of misconduct, either civil or criminal; discussions related to acquisition or lease of real property; discussions of prospective business or industry entity; discussion of a matter related to the investment of public funds where the premature disclosure would adversely affect the public interest; certain matters related to school committees; and matters relating to grievances filed pursuant to collective bargaining agreement. R.I. Gen. Laws §§ 42-46-4 and 42-46-5.
The Open Meetings Act states that closed meetings may be held for discussion of an individual’s character, professional competence, or physical or mental health; strategy sessions to discuss collective bargaining and pending or reasonably imminent litigation; strategy sessions to discuss the purchase, exchange, lease, or sale of real property under specified conditions; discussions regarding deployment of security personnel, devices, or systems; investigative proceedings regarding criminal misconduct allegations; certain discussions by the Independent Legislative Ethics Committee, an ethics committee of the Legislature, or a county legislative body; certain business of the Independent Executive Branch Ethics Commission; and a purpose for which a meeting must be closed under Utah Code section 52-4-205(2). Utah Code § 52-4-205(1). In contrast, meetings of the Health and Human Services Interim Committee and of the Child Welfare Legislative Oversight Panel to review fatality review reports, and their responses to such reports, must be closed. Id. § 52-4-205(2). Likewise, “a meeting of a conservation district as defined in Section 17D-3-102 for the purpose of advising the Natural Resource Conservation Service of the United States Department of Agriculture on a farm improvement project if the discussed information is protected information under federal law” must also be closed. Id.
Despite the Open Meetings Act’s literal prohibition against holding a closed meeting for any purpose other than those set forth in Utah Code section 52-4-205, it appears likely that a public body also could close a meeting if such closure were authorized expressly by another state statute. The Utah Supreme Court has held that the deliberations of an agency acting in a quasi-judicial capacity may be conducted in secret, even though no statutory authorization exists for such secret deliberations. See Dairy Prod. Serv. Inc. v. City of Wellsville, 2000 UT 81, 13 P.3d 581; Andrews v. Utah Bd. of Pardons, 836 P.2d 790 (Utah 1992); Common Cause of Utah v. Utah Pub. Serv. Comm’n, 598 P.2d 1312, 1315 (Utah 1979).
A meeting held by the city to discuss the circumstances surrounding a lawsuit, possible outcomes, and suggested actions that should be taken in light of the lawsuit constituted a “strategy session” within the meaning of Utah Code section 52-4-5(1) (renumbered as section 52-4-205(1)(c)) and therefore was closed properly. Poll v. South Weber City, No. 20040888-CA, 2005 WL 1177231, at *2 (Utah Ct. App. May 19, 2005).
“An ordinance, resolution, rule, regulation, contract, or appointment may not be approved at a closed meeting.” Utah Code § 52-4-204(3). This means that a public body may not take any final action at a closed meeting, even for those matters that are exempt under Utah Code section 52-4-205(1).
“A public body may not … interview a person applying to fill an elected position in a closed meeting…discuss filling a midterm vacancy or temporary absence …; or discuss the character, professional competence, or physical or mental health of the person whose name was submitted for consideration to fill a midterm vacancy or temporary absence.” Id. § 52-4-205(3).
A meeting generally may be closed only if “a quorum is present,” if “the meeting is an open meeting for which notice has been given,” and if “two-thirds of the members of the public body present at the open meeting vote to approve closing the meeting.” Id. § 52-4-204(1). In other words, a decision to close a meeting must be made in public, at an open meeting.
The authority of any public body to go into executive session is limited only to those instances in which the body is to consider specific topics or types of action enumerated in 1 V.S.A. § 313(a). Section 313(a) provides that:
“ [A] public body may not hold an executive session except to consider one or more of the following:
(1) after making a specific finding that premature general public knowledge would clearly place the public body or a person involved at a substantial disadvantage:
(B) labor relations agreements with employees;
(C) arbitration or mediation;
(D) grievances, other than tax grievances;
(E) pending or probable civil litigation or a prosecution, to which the public body is or may be a party;
(F) confidential attorney-client communications made for the purpose of providing professional legal services to the body;
(2) the negotiating or securing of real estate purchase or lease options;
(3) the appointment or employment or evaluation of a public officer or employee, provided that the public body shall make a final decision to hire or appoint a public officer or employee in an open meeting and shall explain the reasons for its final decision during the open meeting;
(4) a disciplinary or dismissal action against a public officer or employee; but nothing in this subsection shall be construed to impair the right of such officer or employee to a public hearing if formal charges are brought;
(5) a clear and imminent peril to the public safety;
(6) records exempt from the access to public records provisions of section 316 of this title; provided, however, that discussion of the exempt record shall not itself permit an extension of the executive session to the general subject to which the record pertains;
(7) the academic records or suspension or discipline of students;
(8) testimony from a person in a parole proceeding conducted by the Parole Board if public disclosure of the identity of the person could result in physical or other harm to the person;
(9) information relating to a pharmaceutical rebate or to supplemental rebate agreements, which is protected from disclosure by federal law or the terms and conditions required by the Centers for Medicare and Medicaid Services as a condition of rebate authorization under the Medicaid program, considered pursuant to 33 V.S.A. §§ 1998(f)(2) and 2002(c);
(10) security or emergency response measures, the disclosure of which could jeopardize public safety.”
Vermont Courts interpreting 1 V.S.A. § 313(a)(1) have determined that whether the “substantial disadvantage” standard is met must be determined on a “case by case analysis,” and the public body bears the burden of making the demonstration. Blum v. Friedman, 172 Vt. 622, 624, 782 A.2d 1204, 1206 (Vt. 2001); Trombley v. Bellows Falls Union High Sch. Dist. No. 27, 160 Vt. 101, 104, 624 A.2d 857, 860 (Vt. 1993); see also Berlickij v. Town of Castleton, 327 F. Supp. 2d 371, 382-83 (D.Vt. 2004) (finding town violated open meeting law by closing meeting in which collective bargaining agreement was discussed without any showing that public knowledge of the issue would have placed town at any sort of disadvantage).
The Vermont Supreme Court has held that a public body’s discussion of a confidential document to which an exemption under the Public Records Act may ultimately apply does not automatically render the document subject to disclosure, and the failure to go into executive session does not violate the Public Records Act. See 232511 Invs., Ltd. v. Town of Stowe Dev. Review Bd., 2005 VT 59, ¶¶ 4-5, 878 A.2d 282, 284 (Vt. 2005).
The Act defines “closed meeting” as a meeting from which the public may be excluded. Va. Code ann. § 2.2-3701. During a properly convened open meeting, a public body may vote, pursuant to the proper procedures in Va. Code Ann. § 2.2-3712.A., to convene in a closed or executive session for the purpose of discussing any one of the subject matters enumerated in Va. Code Ann. § 2.2-3711.
The OPMA allows for closed meetings in only two circumstances: First, certain meetings may be closed because the OPMA is deemed not to apply to such meetings. RCW 42.30.140. Second, agencies are permitted, under certain circumstances, to have a closed executive session. RCW 42.30.110(1)(a)-(k). Any meeting to which OPMA does not apply or any specified circumstance in which executive sessions are permitted, may be closed to the public, including the press. RCW 42.30.110; id. 42.30.140 (2000).
An executive session is "any meeting or part of a meeting of a governing body which is closed to the public." W. Va. Code § 6-9A-2(2). The Act specifies twelve topics that may be considered in a closed session, and these are discussed later in this outline. No decision may be made in an executive session. W. Va. Code § 6-9A-4 (a).