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e. Requirement to state statutory authority for closing meetings before closure

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  • Alabama

    Before convening an executive session, a governmental body must adopt, by recorded vote, a motion calling for the executive session and setting out the statutory authority for convening the executive session, as provided in Section 36-25A-7(a). Ala. Code § 36-25A-7(b).

    Prior to voting to convene an executive session to discuss with an attorney pending litigation, controversies imminently likely to be litigated, or to meet with a mediator or arbitrator, the governmental body is required to receive a written opinion or oral declaration reflected in the minutes from an attorney licensed to practice law in Alabama that an executive session is proper under the Alabama Open Meetings Act. Ala. Code § 36-25A-7(a)(3).

    Prior to convening an executive session 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, a law enforcement officer with authority to make an arrest or a district or assistant district attorney or the attorney general or assistant attorney general must advise the governmental body in writing or by oral declaration entered into the minutes that the discussions would imperil effective law enforcement if disclosed outside of an executive session. Ala. Code § 36-25A-7(a)(5).

    Prior to convening an executive session 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 or to discuss matters or information of the character defined or described in the Alabama Trade Secrets Act, a person involved in the recruitment or retention effort or who has personal knowledge that the discussion will involve matters or information of the character defined or described in the Alabama Trade Secrets Act must advise the governmental body in writing or by oral declaration entered into the minutes that the discussions would have a detrimental effect upon the competitive position of a party to the negotiations or upon the location, retention, expansion or upgrading of a public employee or business entity in the area served by the governmental body if disclosed outside of an executive session, or would disclose information protected by the Alabama Trade Secrets Act. Ala. Code § 36-25A-7(a)(7).

    Prior to convening an executive session to discuss strategy in preparation for negotiations between the governmental body and a group of public employees, a person representing the interests of a governmental body involved in such negotiations must advise the governmental body in writing or by oral declaration entered into the minutes that the discussions would have a detrimental effect upon the negotiating position of the governmental body if disclosed outside of an executive session. Ala. Code § 36-25A-7(a)(8).

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  • Alaska

    The OMA requires that the body indicate what specific legal basis it has for holding an executive session. Subjects may not be considered at an executive session except those mentioned in the motion calling for the executive session unless the discussion is "auxiliary to the main question." AS 44.62.310(b). The law requires that "the motion to convene in executive session must clearly and with specificity describe the subject of the proposed executive session without defeating the purpose of addressing the subject in private." Id. This provision was added as part of the 1994 revisions to the Open Meetings Act, to strengthen and clarify the requirement of adequate subject matter notice of executive sessions, and to promote consistency in the way notice is given.

    The subjects that may be considered in an executive session are limited to the following: (1) matters, the immediate knowledge of which would clearly have an adverse effect upon the finances of the public entity; (2) subjects that tend to prejudice the reputation and character of any person, provided the person may request a public discussion; (3) matters which by law, municipal charter, or ordinance are required to be confidential; and (4) matters involving consideration of government records that by law are not subject to public disclosure. AS 44.62.310(c). The law requires that these provisions must be "construed narrowly in order to effectuate the policy stated in Section .312(a) [of the OMA] and to avoid . . . unnecessary executive sessions." AS 44.62.312(b). In addition to limiting the permissible subject areas for executive sessions, the requirement of clear and specific notice of the precise subject of the closed session allows the public and/or a reviewing court to meaningfully determine whether the body is adhering to the act, and allows members to know whether they are straying from discussion permitted by law. For example, it is much more informative to say the school board is going into executive session to discuss the status of labor negotiations with the teacher's union, than to simply say the session is to discuss "matters the immediate knowledge of which could have an adverse effect on the finances of the school district." Both are accurate, and an executive session would be proper for this reason, but only the former gives the legally required meaningful, specific notice of why the board is retiring to executive session. Specific notice need not be provided where giving such notice would defeat the purpose of the statutory exception (e.g., a motion to discuss "child molesting allegations against sixth grade teacher, Jan Doe, at Big Moose Elementary").

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  • Arizona

    No such requirement.

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  • Arkansas

    Before going into executive session pursuant to the FOIA’s personnel exemption, the governing body must first announce in public the “specific purpose” of the closed meeting. Ark. Code Ann. § 25-19-106(c)(1)(B). If the executive session is held pursuant to another statute, however, then this requirement — which was added to the personnel exemption in 1999 — should not apply. Nonetheless, it is a good idea for governing bodies to state publicly the purpose of any closed meeting, as Attorney General’s opinions have suggested. Ark. Op. Att’y Gen. Nos. 96-052, 96-009, 90-239.

    By using the term “specific purpose” in Section 25-19-106(c)(1)(B), the General Assembly made plain that the announcement must reflect why the governing body is invoking the personnel exemption. For example, “we are going into executive session to consider the promotion of an employee” would suffice, since promotion is one of the matters that can be the basis for a closed meeting under the statute. By contrast, a general statement that “we are going into executive session to consider personnel matters” would not satisfy the requirement. An earlier version of the 1999 legislation would have required the governing body to disclose the name of the particular employee, officer or candidate for employment being considered, but this provision was deleted. See S.B. 901, 82d General Assembly (March 15, 1999). As a practical matter, the name of the individual under consideration will have to be disclosed if any action is taken by the governing body, which must reconvene in public after the executive session and take a vote. Ark. Code Ann. § 25-19-106(c)(4).

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  • California

    Bagley-Keene Act: The specific agenda of a closed session, to be included with the notice, must contain a brief general description of items of business to be transacted or discussed. Cal. Gov't Code § 11125(b). The description shall include a citation to the specific statutory authority under which a closed session is being held. Cal. Gov't Code § 11125(b).

    Brown Act: The Brown Act does not require a citation to statutory authority for holding a closed meeting.

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  • Colorado

    See Colo. Rev. Stat. § 24-6-402(3)(a) (authorizing the body to meet in executive session).

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  • Connecticut

    Reasons must be stated at a public meeting. See above, and Conn. Gen. Stat. §1-225(f).

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  • Delaware

    Although there is no requirement to give a statutory authority before executive sessions are held, "[t]he purpose of such executive sessions shall be set forth in the agenda and shall be limited to" meeting exemptions in the Act. 29 Del. C. § 10004(c).

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  • District of Columbia

    Before closure, the presiding officer must make a statement providing the reason(s) for closure, citing the relevant authority in D.C. Code Ann. § 2-575(b), and providing the subjects to be discussed in closed session.  Id. § 2-575(c)(2).

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  • Florida

    The entity’s attorney must advise the entity at a public meeting that he or she desires advice concerning pending litigation. Fla. Stat. § 286.011(8)(a).

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  • Georgia

    The Act provides that no agency may close any portion of any meeting—i.e., go into executive session—except by a majority vote, in public session, of the quorum present. O.C.G.A. § 50-14-4(a).

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  • Hawaii

    Yes. The board must publicly announce the reason(s) for holding a closed meeting. Haw. Rev. Stat. § 92-4. Executive sessions must be limited to the purposes enumerated in Section 92-5, id. § 92-4, and cannot involve decisions or deliberations toward a decision on other matters. Id. § 92-5(b).

    Moreover, at an open meeting held prior to a limited meeting, the board must determine that it is necessary to meet at the dangerous location and specify the reasons for its determination and two-thirds of all members to which the board is entitled vote to adopt the determinations and conduct the limited meeting. Id. § 92-3.1(a).

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  • Idaho

    Prior to beginning any executive session, the governing body’s presiding officer must identify the authorization under Idaho Code § 74-206(1)-(2) for holding an executive session.

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  • Illinois

    The specific exception authorizing the closed meeting shall be publicly disclosed at the time of the vote and must be recorded and entered into the minutes of the meeting. See 5 ILCS 120/2a.

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  • Indiana

    The specific statutory exemption for an executive session, listed under Ind. Code § 5-14-1.5-6.1(b), must be stated in the meeting notice. Ind. Code § 5-14-1.5-6.1(d).

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  • Iowa

    "[T]he reason for holding the closed session by reference to a specific exemption under this section [§ 21.5(2)] shall be announced publicly at the open session." Iowa Code § 21.5(2).

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  • Kansas

    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.”

    Kan. Att’y Gen. Op. 2018-1.

    The justification for closing the meeting must be stated in the minutes. K.S.A. 75-4319(a); K.S.A. 75-4319(b).  These justifications provide the body’s primary avenue to avoid public discussion of public business and are set forth in K.S.A. 75-4319(b)(1) through (15).  Some of the most common justifications are:

    (i) Personnel matters of non-elected personnel         

    The justification “Personnel matters of non-elected personnel” appears in K.S.A. 75-4319(b)(1).  The purpose of the exception is to protect the privacy interests of employees, save personal reputations, and encourage qualified people to remain in government employ. State of Kansas v. Bd. of Educ., et al., 13 Kan. App. 2d 117, 119 (1988).  “Personnel” refers to employees of the public agency, not persons appointed to boards or committees. Kan. Att’y Gen. Op. 87-10. “Personnel” also does not include independent contractors, public officers such as workers compensation administrative law judges, workers compensation appeals board members and employment security board of review members. See Kan. Att’y Gen. Ops. 2002-28, 87-169 and 16-3.

    The justification may be used to discuss applicants for employment in executive session. Kan. Att’y Gen. Op. 96-61.  The justification may not be used to recess into executive session to discuss groups, and discussions of consolidation of departments or overall salary structure are not proper topics for discussion under this exception.  See Kan. Att’y Gen. Op. 88-25 (“Discussions concerning consolidation of departments and the addition or elimination of job functions or positions may not be held in executive session under the "personnel matters" exception.”).  See also Kan. Att’y Gen. Ops. 81-39 and 80-102. But see State v. Bd. of Educ., 13 Kan. App. 2d 117 (discussion of exempt and nonexempt topics in executive session; separation burdensome and impractical, if not impossible). It also may not be used to discuss policy matters.  Kan. Att’y Gen. Op. 2009-21 (employee evaluation may take place in executive session; employee’s implementation of policy or directive may be discussed, but not policy or directive itself).

    (ii) Consultation with the public body’s attorney that would be deemed privileged in the attorney-client relationship.

    This justification appears in K.S.A. 75-4319(b)(2); see also K.S.A. 60-426 (lawyer-client privilege); Pickering v. Hollabaugh, 194 Kan. 804 (1965).  In order to invoke this justification, all elements of attorney-client privilege must be present:

    1) The body’s attorney must be present,

    2) The communication must be privileged, and

    3) No other third parties may be present. See Kan. Att’y Gen. Ops. 92-56; 82-247; 82-176; 82-130; 78-303.

    “The ‘consultation with an attorney’ exception to the open meetings law cannot be invoked unless the attorney for the body is present.”  Kan. Att’y Gen. Op. 86-162.

    “[S]tatements made during executive sessions were not privileged from discovery.”  Hinsdale v. City of Liberal, 981 F. Supp. 1378, 1378 (1997).

    (iii). Employer-employee negotiations.

    Contained in K.S.A. 75-4319(b)(3), this justification allows for recess to discuss conduct or status of negotiations, with or without the authorized representative who is actually doing the bargaining. SeeKan. Att’y Gen. Op. 79-125.  This justification cannot be used to meet with employees. Kan. Att’y Gen. Op. 80-43.  School boards have special rules for professional negotiations. See K.S.A. 72-5423(c); Kan. Att’y Gen. Op. 92-51.

    (iv). Confidential data relating to financial affairs or trade secrets of corporations, partnerships, trusts, and individual proprietorship.

    Appearing in K.S.A. 2016 Supp. 75-4319(b)(4), this justification is available “only when the topic of conversation clearly involves confidential financial data, or ‘trade secrets’ as that term has been defined by Kansas courts.”  Kan. Att’y Gen. Op. 88-148.  “When in doubt, members of the Commission should remember that exceptions to the open meetings law are interpreted narrowly.”  Id.  Only applies to discussions related to data that is truly confidential in nature. See K.S.A. 60-3320(4); Sw. Bell Tel. Co. v. State Corp. Comm’n, 6 Kan. App. 2d 444, 457 (1980), rev. den. 230 Kan. 819 (1981); All West Pet Supply v. Hill’s Pet Products, 840 F. Supp. 1433, 1437 (Kan. 1993).

    Statutes outside of KORA can provide additional bases to recess into executive sessions.  See K.S.A. 74-99b07(c); Kan. Att’y Gen. Op. 2011-23.

    (v). Matters affecting a student, patient, or resident of public institutions.

    Appearing in K.S.A. 75-4319(b)(5), this justification can be invoked if the matter affects a particular individual, not students, patients, or residents in general.  Inmates are considered “residents” under the statute.  Kan. Att’y Gen. Op. 80-102. “A general discussion of quality of care and staffing issues would not be allowed in an executive session unless the topic concerned an individual staff member, patient or another subject closed by statute.”  Kan. Att’y Gen. Op. 2008-22; see also Kan. Att’y Gen. Op. 89-22 (discussing hospital peer review and risk management reports).

    A hearing on the matters must be open, and the body cannot recess into executive session under this justification, if requested by person involved.  K.S.A. 75-4319(b)(5).

    (vi). Preliminary discussions relating to acquisition of real property.

    This justification appears in K.S.A. 75-4319(b)(6).  “[D]iscussions concerning the acquisition of real property by a public body may take place in a closed meeting. Therefore, discussions relating to the sale of real property owned by a public body must be held in an open meeting.”  Kan. Att’y Gen. Op. 87-91.  This exception can be used only when the primary focus of the discussion is real property; negotiating strategy alone is insufficient. Kan. Att’y Gen. Op. 89-92.

    (vii). Other subjects may be discussed in closed or executive meeting pursuant to specific statutes.

    See, e.g., K.S.A. 2016 Supp. 75-4319(b)(7) [racing and gaming]; (b)(8) [abuse and neglect]; (b)(9) [child death review board]; (b)(11) [Medicaid drug utilization board] (b)(12) [tribal-state gaming compacts]; (b)(13)[security measures, if open discussion would jeopardize security] (b)(14) [records on matters related to child care facilities or maternity centers]; (b)(15) [KHPA and inspector general discussion of investigations and audits].

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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

    Closure is limited to those matters specifically exempted and the "reason" for going into executive session shall be recorded in the minutes. La. Rev. Stat. Ann. § 42:16. See also Norris v. Monroe City School Bd., supra.; Courvelle v. Louisiana Recreational and Used Motor Vehicle Commission, 21 So.3d 340 (La.App. 1st Cir. 2009) (specific reasons must be given as to how a public discussion of certain litigation would be detrimental).

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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

    A public body is required to cite statutory authority for closing a meeting in a written statement prepared before closing a meeting. § 3-305(d)(2)(ii). The public body is also required to cite the statutory authority for closure in the minutes of its next open session. § 3-306(c)(2)(iii).

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  • Massachusetts

    The presiding officer must cite in advance the "purpose" of the proposed executive session. G.L. c. 39, § 23B.

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  • Michigan

    Not specified.

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  • Minnesota

    Minn. Stat. § 13D.01, subd. 3 requires that the body state on the record the "specific grounds" that permit the meeting to be closed and to "describe the subject to be discussed."

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  • Mississippi

    The reason for holding an executive session shall be stated in an open meeting and shall be recorded in the minutes, § 25-41-7(3); Op. Att'y Gen. June 13, 1990 to Freddie Lover. The reason given must be stated "with sufficient specificity to inform those present that there is in reality a specific, discrete matter or area which the board had determined should be discussed in executive session." Hinds Co. Bd. of Supervisors, supra, 551 So. 2d 111. The discussion of "litigation" is not a sufficient reason. Id. See also Op. Att'y Gen. Aug. 22, 1991 to Diane Stewart. ("To simply say 'personnel matters,' or 'litigation' tells nothing.").  Nothing in the statute governing executive session allows for the exclusion of a member of the public body, even if that member has sued the public body.  Att’y Gen. Op. 2006-00127 (May 19, 2006).  Officials who discuss matters not exempt during an otherwise properly called executive session violate the Act.  Miss. Ethics Commission Op. M-10-016 (January 7, 2011).

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  • Montana

    The chair of the body must disclose the reasons for closing the meeting at the outset and give citizens in attendance the right to state objections.

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  • Nebraska

    Yes. “The subject matter and the reason necessitating the closed session shall be identified in the motion to close.” Neb. Rev. Stat. §84-1410 (1). "The entire motion, the vote of each member on the question of holding a closed session, and the time when the closed session commenced and concluded shall be recorded in the minutes." Neb. Rev. Stat. §84-1410(2) (Reissue 2014). “If the motion to close passes, then the presiding officer immediately prior to the closed session shall restate on the record the limitation of the subject matter of the closed session.” Neb. Rev. Stat. §84-1410(2).

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  • Nevada

    The law contains no specific requirement requiring a body to state the statutory authority for closing a meeting.

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  • New Hampshire

    The Statute requires the motion to "state on its face the specific exemption under paragraph II which is relied upon as foundation for the nonpublic session." RSA 91-A:3,I(b).

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  • New Jersey

    A resolution to go into closed session which merely "parrots" the statutory language is insufficient. The resolution should contain as much information as is consistent with full public knowledge without doing harm to the public interest that supports the closure. Council of New Jersey State College Locals v. Trenton State, 284 N.J. Super. 108, 663 A.2d 664 (Law Div. 1995). See Houman v. Mayor of Pompton Lakes, 155 N.J. Super. 129, 149-50, 382 A.2d 413 (Law Div. 1977) and McGovern v. Rutgers, 2011 N.J. Super. Lexis 32 (App. Div., 2011).

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  • New Mexico

    If made in an open meeting, requires a majority vote of the body by roll call. and the motion must state the authority for the closure and the subject to be discussed with reasonable specificity.  The vote shall be taken in open meeting, and the vote of each member shall be recorded in the minutes.  Only those subjects announced prior to the closure by the body may be discussed in a closed meeting. NMSA 1978 § 10-15-1(I)(1).  If a closed session is called for when the public body is not in an open meeting, the notice must state the specific provision of law authorizing a closed meeting and state with reasonable specificity the subject to be discussed.  NMSA 1978 § 10-15-1(I)(2).

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  • New York

    A motion identifying the general area or areas of the subject or subjects to be considered must be made prior to conducting an executive session. N.Y. Pub. Off. Law. § 105(1) (McKinney 1988). The subject areas must be identified with particularity.

    See Matter of Zehner v. Board of Educ. of Jordan-Elbridge Cent. Sch. Dist., 91 A.D.3d 1349, 1350, 937 N.Y.S.2d 510 (4th Dep’t 2012) (finding Board violated OML by merely reciting statutory categories for going into executive session without setting forth more precise reasons for doing so); Dicesare v. Board of Education, No. 2907/88 (Sup. Ct., Dutchess Cty., Jan. 9, 1989) (merely reiterating statutory language is insufficient, but is not good cause to invalidate action at executive session); Daily Gazette Co. v. Town Bd., 111 Misc.2d 303, 444 N.Y.S.2d 44 (Sup. Ct. 1981) (“it is insufficient to merely regurgitate the statutory language . . . boilerplate recitation does not comply with the intent of the statute”); Doolittle v. Board of Educ., No. 81-1942 (Sup. Ct., Chemung Cty., Oct. 20, 1981) (identifying the general subject area as “personnel,” “negotiations” or “legal problems” is not sufficient to comply with the OML). See also Previdi v. Hirsch, 138 Misc.2d 436, 524 N.Y.S.2d 643 (Sup. Ct. 1988) (OML was violated by a notice of an executive session stating purpose was “to discuss personnel matters and negotiations”). But see Stephenson v. Bd. of Educ. of Hamburg Cent. Sch. Dist., No. 12597/2010, 2011 WL 1877621  (Sup. Ct., Erie Cty., May 17, 2011) (“to discuss litigation” is sufficient; specificity such as “to discuss litigation concerning Jane Doe” is not required).

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  • North Carolina

    A member of the public body must make a motion, stating the authority for going into closed session, and the motion must pass before going into closed session. If the reason for the closed session is to discuss pending litigation, the motion must identify the parties to the litigation. G.S. § 143-318.11(c).

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  • North Dakota

    The governing body must announce 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. N.D.C.C. § 44-04-19.2(2).

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  • Ohio

     

    Before convening executive session, the public body must specify the purpose or purposes of the executive session, such as to discuss negotiation strategy for a collective bargaining contract. Ohio Rev. Code § 121.22(G).

    If a public body holds an executive session for personnel matters, the motion and vote to hold that executive session must state the specific kind of personnel matter to be discussed, e.g., discipline of a public employee. The notice need not name the person being considered. Ohio Rev. Code § 121.22(G)(1).

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  • Oklahoma

    The act explicitly requires that the agenda must state specifically the section of the law authorizing the executive session. 25 O.S. § 307.B.

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  • Oregon

    An applicable exemption must be cited for an executive session which is either scheduled in advance or called during the course of a meeting. ORS 192.640(2), ORS 192.660(1).

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  • Pennsylvania

    There would appear to be no requirement to explicitly state the legal source for the agency’s authority to go into executive session. However, the announcement of the reason for the session, particularly if given with the requisite specificity, should state the exemption to the Act that the agency relied on before continuing in closed session.

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  • Rhode Island

    The chairperson is required to publicly state that the meeting will be a closed meeting and indicate the specific statutory authority for closing the meeting.  R.I. Gen. Laws § 42-46-2(2).

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  • South Carolina

    The public body must state the specific purpose of the executive session prior to convening in executive session, but most members of public bodies cannot distinguish between a generic purpose, e.g., a personnel matter, and a specific purpose, e.g., to discuss the hiring of a new elementary school principal. S.C. Code Ann. § 30-4-70(b).

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  • South Dakota

    Yes. SDCL §1-25-2).

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  • Texas

    Failure to identify the section number of the exemption is not fatal. See Lone Star Greyhound Park Inc. v. Texas Racing Comm'n, 863 S.W.2d 742, 747 (Tex. App.—Austin, 1993, writ denied) (where the presiding officer announced a briefing by "our legal staff," reference to the content of the exemption provided sufficient identification of the applicable section of the Act).

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  • Utah

    The reasons for holding the closed meeting, the location where the closed meeting will be held, and the members’ votes on whether to close the meeting must be recorded in the minutes. Utah Code § 52-4-204(4).

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  • Vermont

    Not addressed.

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  • Virginia

    A statement shall be included in the minutes of the open meeting which shall (i) identify the subject matter of the closed meeting; (ii) state There are no tape recording requirements in the Act. purpose of the meeting as authorized by § 2.2-3711 or other provision of law, and (iii) cite specifically the provision of law authorizing the closed meeting. Va. Code Ann. § 2.2-3712.A. A general reference to the Act or its authorized closed meeting exclusions shall not be sufficient.

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  • Washington

    As stated above, the OPMA requires the presiding officer of a governing body to publicly announce the purpose for excluding the public from the meeting before going into executive session. Id. It is generally accepted that the public announcement must specifically identify the exemption of the Act that is involved and the general subject matter of the closed session.

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  • West Virginia

    The presiding officer of a governing body must publicly state the authority under the Act for requesting the governing body go into executive session. W. Va. Code § 6-9A-4.

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  • Wisconsin

    "No motion to convene in closed session may be adopted unless the chief presiding officer announces to those present at the meeting at which such motion is made, the nature of the business to be considered at such closed session, and the specific exemption or exemptions under this subsection by which such closed session is claimed to be authorized. Such announcement shall become part of the record of the meeting. No business may be taken up at any closed session except that which relates to matters contained in the chief presiding officer’s announcement of the closed session.” Wis. Stat. § 19.85(1).

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  • Wyoming

    The Public Meetings Law requires governing bodies to cite statutory authority and the reasons for the closure.  Members of a governing body would have to know the purpose of the session in order to know how to vote on whether to go into executive session.

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