Skip to content

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

Posts

  • 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").

    view more
  • Arizona

    No such requirement.

    view more
  • 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).

    view more
  • 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.

    view more
  • Colorado

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

    view more
  • Connecticut

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

    view more
  • 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).

    view more
  • 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).

    view more
  • 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).

    view more
  • 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).

    view more
  • 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.

    view more
  • 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.

    view more
  • 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).

    view more
  • 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).

    view more
  • Kansas

    The reason for closing the meeting must be stated in the minutes. K.S.A. 75-4319(a).

    view more
  • 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).

    view more
  • 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).

    view more
  • Maine

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

    view more
  • 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).

    view more
  • Massachusetts

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

    view more
  • Michigan

    Not specified.

    view more
  • 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.

    view more
  • 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).

    view more
  • Nevada

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

    view more
  • 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).

    view more
  • 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).

    view more
  • 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).

    view more
  • 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).

    view more
  • 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).

    view more
  • 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).

    view more
  • 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.

    view more
  • 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).

    view more
  • 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).

    view more
  • 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).

    view more
  • South Dakota

    Yes. SDCL §1-25-2).

    view more
  • 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).

    view more
  • 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).

    view more
  • Vermont

    Not addressed.

    view more
  • 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.

    view more
  • 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.

    view more
  • 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.

    view more
  • 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.

    view more