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d. Requirement to meet in public before closing meeting

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  • Alaska

    A body cannot meet in executive session unless it has first properly convened in a duly noticed public meeting. AS 44.62.310(b) and (e). The statute provides that "if permitted subjects are to be discussed at a meeting in executive session, the meeting must first be convened as a public meeting and the question of holding an executive session to discuss matters that are listed in (c) of this section shall be determined by a majority vote of the governmental body." AS 44.62.310(b). An illegal closed meeting cannot be justified or made legal by calling it an "executive session."

    The mere fact that a public body has convened a regular and proper session, however, does not mean that it may carry on that meeting in a formal or informal setting, or "regular" or "executive" session, without complying with the normal public meeting requirements. So, for example, a superior court ruled that the Board of Fisheries violated the Open Meetings Act where the board discussed proposed regulations at a dinner meeting that followed the adjournment of a regular board meeting. Johnson v. State of Alaska Board of Fisheries, Case No. 3KN-83-386 Civ. (Alaska Super. Ct. 3rd Jud. Dist., Feb. 11, 1985).

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  • Arizona

    A public body may hold an executive session only “[u]pon a public majority vote of the members constituting a quorum.”  A.R.S. § 38-431.03(A) (emphasis added); see Shelby Sch., 192 Ariz. at 167, 962 P.2d at 241 (finding the Board of Education’s deliberations in an executive session followed by a final decision in an open meeting complied with the OML).

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  • Arkansas

    The Attorney General has opined that a governing body holding an executive session must convene in public before retiring to executive session. Only a member of the body may move that an executive session be held. Ark. Op. Att’y Gen. Nos. 96-009, 91-070. If the closed meeting is to be held pursuant to the FOIA’s personnel exemption, it must be preceded by a public meeting at which the “specific purpose” of the executive session is announced. Ark. Code Ann. § 25-19-106(c)(1). Following an executive session, the body must reconvene in public and formally vote on the matter discussed at the closed meeting. Ark. Code Ann. § 25-19-106(c)(4); Yandell v. Havana Bd. of Educ., 266 Ark. 434, 585 S.W.2d 927 (1979); Ark. Op. Att’y Gen. No. 96-052.

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  • California

    The Bagley-Keene Act provides that a closed session shall only be held during a regular or special meeting of the state body. Cal. Gov't Code § 11128. Both Acts require the state body or the legislative body of a local agency to disclose in an open meeting, prior to the closed session, the nature of the items to be discussed. Cal. Gov't Code §§ 11126.3(a) (Bagley-Keene Act); 54957.7(a) (Brown Act).

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  • Colorado

    An executive session may be held only after the announcement to the public of the topic for discussion in the executive session and the affirmative vote of two-thirds of the entire membership of the state public body or two-thirds of the quorum present of the local public body. Colo. Rev. Stat. §§ 24-6-402(3)(a) (state) and 24-6-402(4) (local).

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  • Connecticut

    A public agency may hold an executive session only if two-thirds of the members present and voting so vote, and that vote is taken at a public meeting and the reasons for the executive session are publicly stated at that public meeting. Conn. Gen. Stat. §1-225(f). See Durham Middlefield Interlocal Agreement Advisory Bd. v. FOIC, No. CV 96-0080435, 1997 WL 491574 (Conn. Super. Aug. 12, 1997) (plaintiff violated Conn. Gen. Stat. §1-226 by convening an executive session without stating the reason for such executive session.) An executive session may not be convened to receive or discuss oral communications that would otherwise be privileged by the attorney-client relationship if the agency were a nongovernmental entity, unless the executive session is for a purpose explicitly permitted pursuant to [Conn. Gen. Stat. §200(b)]. Conn. Gen. Stat. §1-231(b).

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  • Delaware

    In order to go into executive session there must be an affirmative vote of a majority of members present at a meeting of the public body. 29 Del. C. § 10004(c). The vote on the question of holding an executive session shall take place at a meeting of the public body that shall be open to the public, and the results of the vote shall be made public and shall be recorded in the minutes. Id.

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  • District of Columbia

    Before closing a meeting or portion of a meeting, a public body must meet in public session and a majority of members present must vote in favor of closure.  D.C. Code Ann. § 2-575(c)(1).

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  • Georgia

    The Act requires that an agency meet in public before excluding the public and meeting in executive or closed session. No executive session is permissible absent a majority vote of a quorum of those present, O.C.G.A. § 50-14-4(a), and the Act requires all votes to be taken in public at a duly noticed meeting held in compliance with the Act’s posting and agenda requirements, § 50-14-1(b)(1).

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  • Hawaii

    Yes. In the case of executive meetings, the board must also record the vote of each member on the question of holding a meeting closed to the public in the minutes of an open meeting. Haw. Rev. Stat. § 92-4. Before holding a limited meeting, the board must hold an open meeting. See id. § 92-3.1(a).

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  • Idaho

    Idaho Code § 74-206(1) provides that a governing body must meet in a public session prior to closing a meeting.   Such governing body shall identify the specific subsections of the Open Meeting Law that authorize the executive session and there must be a roll call vote on the motion recorded in the minutes. Id. An executive session shall be authorized by a two-thirds (2/3) vote of the governing body. Id. Idaho Code § 74-206(2) further provides that “[t]he exceptions to the general policy in favor of open meetings stated in this section shall be narrowly construed. It shall be a violation of this act to change the subject within the executive session to one not identified within the motion to enter the executive session or to any topic for which an executive session is not provided.”

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  • Illinois

    The Act specifies that a meeting may be closed by majority vote of the quorum present at an open meeting for which notice has been given. The vote of each member shall be publicly disclosed at the time of the vote and must be recorded in the minutes. See 5 ILCS 120/2a.

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  • Indiana

    The law contains no such requirement. In fact, the law specifically provides that a governing body may not conduct an executive session during a meeting, and a meeting may not be recessed and reconvened with the intent of circumventing this section of the statute. Ind. Code § 5-14-1.5-6.1(e). See also Frye v. Vigo Cnty., 789 N.E.2d 188, 192 (Ind. Ct. App. 2002) (stating that the only official action that may not take place in an executive session is a final action).

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  • Iowa

    "The vote of each member on the question of holding the closed session . . . shall be announced publicly at the open session." Iowa Code § 21.5(2).

    See Barrett v. Lode, 603 N.W.2d 766, 771 (Iowa 1999) (suggesting to a reporter that a session was about to be closed in order to force him to leave may violate the act).

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  • Kansas

    K.S.A. 75-4319(a) which requires that minutes reflect the reason for closing the meeting, the subjects to be discussed during the closed meeting, and the time and place that the open meeting will resume implies that an open meeting must be held prior to recessing for a closed meeting. Kan. Att’y Gen. Op. 1986-33.

    The Kansas Bioscience Authority has authority to close an open meeting for the purpose of having an executive session to discuss or consider marketing or operational strategies even absent a “contract for” such topics if it finds that disclosure of such information would be harmful to its competitive position. Kan. Att’y Gen. Op. 2011-23.

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  • Kentucky

    “Notice shall be given in regular open meeting of the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session.” Ky. Rev. Stat. 61.815(1)(a).

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  • Louisiana

    A public body may hold nonpublic executive sessions only upon an affirmative vote of two-thirds of its constituent members present at an open meeting. La. Rev. Stat. Ann. § 42:16.

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  • Maine

    A public body must take a public recorded vote to go into executive session.  1 M.R.S.A. § 405(3).

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  • Maryland

    The Act does not require the public body to meet in open session before closing the meeting. However, the Act does permit a public body meeting in open session to adjourn to closed session. § 3-305(a).

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  • Michigan

    A public body must meet in public before closing a meeting in order to take the 2/3 roll call vote of its members which is required to call a closed session. Mich. Comp. Laws Ann. § 15.267(1). No final action may be taken during a closed meeting, since Mich. Comp. Laws Ann. § 15.263 requires that "decisions" be made at open meetings. 1979-80 Op. Att'y Gen. 57 (1979).

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  • Montana

    All decisions made after a closed meeting must be made in open session.

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  • Nebraska

    "The vote to hold a closed session shall be taken in open session." Neb. Rev. Stat. §84-1410(2).

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  • Nevada

    A closed meeting may be held upon a motion, during a regularly noticed meeting, specifying the business to be considered during the closed session and the statutory authority pursuant to which the public body is authorized to close the meeting. NRS 241.030(3).

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  • New Hampshire

    The Statute provides that "(n)o body or agency may enter nonpublic session, except by a motion properly made and seconded." RSA 91-A:3,I(a).

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  • New Jersey

    To go into a closed session, a public body must first adopt a resolution at a public meeting (regular, special or emergency) for which public notice has been given in accordance with the OPMA.

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  • North Carolina

    A closed session may be held only upon the passage of a proper motion, at an open session, to go into a closed session. G.S. § 143-318.11(c).

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  • North Dakota

    Before holding an executive session, the governing body must first convene in an open session and, unless a confidential meeting is required, passes a motion to hold an executive session. N.D.C.C. § 44-04-19.2(2).

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  • Ohio

    A public body may hold an executive session only after a majority of a quorum of the public body determines, by roll call vote during an open session, to hold such a session. Ohio Rev. Code § 121.22(G). An executive session must begin and adjourn in open session. Specht v. Finnegan, 149 Ohio App. 3d 201, 776 N.E.2d 564, 2002-Ohio-4660 (Ohio App. 6th Dist.).

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  • Oklahoma

    A majority of the quorum of members present must vote to go into executive session. 25 O.S. § 307.E.2. However, the Board of Regents of Oklahoma Colleges still holds an executive session only upon a unanimous vote of all present. Okla. Const. Art. XIII-B, § 1.

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  • Oregon

    None. An executive session may be the sole agenda item for a meeting of a governing body.

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  • Rhode Island

    A meeting may be closed upon majority vote of the members by open call.  R.I. Gen. Laws § 42-46-4. An open call is a public announcement by the chairperson that the meeting is to be closed, indicating the statutory authority involved.  R.I. Gen. Laws § 42-46-2(2).

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  • South Dakota

    Yes. SDCL §1-25-2).

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  • Tennessee

    This will frequently happen, where it will be announced why the executive session is being held.

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  • Texas

    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. During such open meeting, the presiding officer must publicly announce that a closed session will be held and identify what sections of the Act authorize the holding of such a closed session. Id. at § 551.101.

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  • Utah

    The public body must hold “an open meeting for which notice has been given under [Utah Code section 52-4-202]” and in which two-thirds of the members present must vote to close the meeting. Utah Code § 52-4-204(1).

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  • Vermont

    The procedure for invoking an executive session is as follows: an affirmative vote of the members of the public body (2/3 of those present for any body of state government; a majority of those present for any local body, such as a municipality) must be taken in an open meeting and the vote recorded in the minutes. 1 V.S.A. § 313(a). The motion to enter executive session must indicate the “nature of the business” to be discussed, and nothing else may be considered. Id.

    Executive sessions may include only the members themselves, the public body’s staff, clerical assistants and legal counsel and any person who is subject to the discussion or whose information is needed. 1 V.S.A. § 313(b).

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  • Virginia

    The motion to go into closed or executive session must be made during a properly convened open meeting. Va. Code Ann. § 2.2-3712.A.

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  • Washington

    Although the OPMA does not expressly say so, it is clearly contemplated that a governing body will meet first in public before closing a meeting. OPMA states that before convening an executive session, the presiding officer must make a public announcement. RCW 42.30.110(2).

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  • West Virginia

    An initial public session, during which the presiding officer presents the justification for closure and the body votes on the issue, is a prerequisite to any executive session. W. Va. Code § 6-9A-4.

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  • Wyoming

    The Public Meetings Act requires a majority vote to go into executive session. Wyo. Stat. § 16-4-405(c). All actions must be taken in open, public session. A separate statute requires city and town councils to approve an executive session by a two-thirds vote.

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