N. Personnel matters

Meetings of governmental bodies may be closed to discuss the job performance of certain public employees unless the person is an elected or appointed public official, an appointed member of a state or local board or commission, or a public employee who is one of the classification of public employees required to file a Statement of Economic Interests with the Alabama Ethics Commission pursuant to Alabama Code § 36-25-14. Ala. Code § 36-25A-7(a)(1). Meetings of governmental bodies to discuss personnel matters must otherwise remain open unless they would fall under one of the exceptions to the Alabama Open Meetings Act. Meetings of governmental bodies may not be closed to discuss the salary, compensation, and job benefits of specific public officials or specific public employees unless they would fall under one of the other exceptions to the Alabama Open Meetings Act. Ala. Code § 36-25-A-7(a)(1).

Not all "personnel matters" may properly be discussed in closed session. Like the catchphrase "budget," the word "personnel" is often too readily invoked to justify an arguably improper executive session. AS 44.62.310(c)(2), allows, but does not require, executive sessions to discuss "subjects that tend to prejudice the reputation and character of any person." If the subject to be discussed relates to personnel, but does not tend to prejudice a specific person's reputation or character, it must be discussed publicly (e.g., criteria for selection of new superintendent or city manager). Even if the discussion would likely be prejudicial, the act further provides that an executive session may be not be held pursuant to this exception if the person to be discussed requests a public discussion. The individual has a statutory right to require that the discussion be open, which means that in order to meaningfully exercise this right he or she should be given advance notice of the planned discussion. See March 15, 1979 Attorney General Opinion, supra. There is one apparent exception to this rule. The Supreme Court has ruled that where comparative qualifications and attributes of job applicants are being discussed, this may be done in executive session without allowing any one or more of the applicants the opportunity to require that the discussion be open. See City of Kenai v. Kenai Peninsula Newspapers, 642 P.2d 1316, 1326 (Alaska 1982). As a reporter, you may want to remind a person you know will be the subject of a discussion about his or her right to have the meeting remain open, and ask whether the person is willing to allow a closed session or to require open proceedings.

A public body may consider in closed executive session any “[d]iscussion 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 should occur at a public meeting.”  A.R.S. § 38-431.03(A)(1).

Any other personnel matter discussed by a public body should be done in an open meeting.  For example, the formulation of the intention to contract or not to contract with employees must be taken at a public meeting.  See Ahnert v. Sunnyside Unified Sch. Dist. No. 12, 126 Ariz. 473, 475, 616 P.2d 933, 935 (1980); Karol, 122 Ariz. at 96-97, 593 P.2d at 650-51.

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Bagley-Keene Act: The Bagley-Keene Act distinguishes between public employees and public officers. Public employees expressly do not include “any person who is elected to, or appointed to a public office by, any state body.”  Cal. Gov’t Code § 11126(b). If a state body meets to consider the appointment, employment or dismissal of a public officer, it must hold an open session. 66 Ops. Cal. Att'y Gen. 34 (1985). A public officer is one who carries out a public duty delegated to him or her as an agent, and which is a part of governmental functions of the particular department. Id. A public officer is also one who "exercises some part of the sovereignty of the state, holds an office created by the Constitution or some statute, and has a position which is continuing rather than occasional or temporary." Id.

A state body may hold a closed session to consider a public employee's appointment, employment, evaluation of performance, or dismissal, or to hear complaints and charges against that employee. Cal. Gov't Code § 11126(a)(1). An employee may request a public hearing. Cal. Gov't Code § 11126(a)(2). Officers of the California State University system who receive compensation for their services, other than per diem and ordinary and necessary expenses, shall be considered employees. Cal. Gov't Code § 11126(b).

Additionally, a state body may hold a closed session to consider the appointment or termination of the individuals in the following positions:

(1) the Director of the California Postsecondary Education Commission (Cal. Gov't Code § 11126(c)(8));

(2) the Executive Director of the Council for Private Postsecondary and Vocational Education (Cal. Gov't Code § 11126(c)(9));

(3) the Executive Officer of the Franchise Tax Board (Cal. Gov't Code § 11126(c)(10));

(4) the Executive Secretary of the State Board of Equalization (Cal. Gov't Code § 11126(f)(7));

(5) the Chief Executive Officer of the Teachers' Retirement Board or the Board of Administration of the Public Employees' Retirement System, or the Chief Investment Officer of the State Teachers' Retirement System or the Public Employees' Retirement System. Cal. Gov't Code § 11126(g)(1); and

(6) the Executive Director of the Commission on Teacher Credentialing. Cal. Gov't Code § 11126(g)(2).

Brown Act: Under the Brown Act, a legislative body may hold a closed session “to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee or to hear complaints or charges brought against the employee by another person or employee unless the public employee requests a public session.” Cal. Gov’t Code § 54957(b)(1). The term “employee” shall include an officer or an independent contractor who functions as an officer or any employee but shall not include any elected official, member of a legislative body or other independent contractor. Cal. Gov’t Code § 54957(b)(4). See, e.g., Hoffman Ranch v. Yuba Cty. Local Agency Formation Comm’n, 172 Cal. App. 4th 805, 810-13, 91 Cal. Rptr. 3d 458 (2009) (holding that contractor assigned to perform “executive officer services” for county local agency formation commission was an “officer and thus an “employee” within meaning of statute, despite contract specifying that contractor was an independent contractor not agent or officer of commission).

In order to hold a closed session on specific complaints or charges against an employee, the employee must be given written notice of his or her right to have the complaints or charges heard in open session. The notice must be delivered to the employee personally or by mail at least 24 hours before the time for holding the session. Cal. Gov’t Code § 54957(b)(2). This notice provision has been held not to apply to a closed session to consider or deliberate on whether complaints or charges brought against an employee justify dismissal or disciplinary action, but to meetings “to hear”—as in a proceeding where witnesses are heard and evidence presented—the complaints or charges against the employee. Bollinger v. San Diego Civil Serv. Comm’n, 71 Cal. App. 4th 568, 574-75, 84 Cal. Rptr. 2d 27 (1999) (closed session to consider whether to affirm demotion recommendation did not require notice to employee and thus action could not be nullified where prior public evidentiary hearing was afforded employee); Kolter v. Comm’n on Prof’l Competence of the Los Angeles Unified Sch. Dist., 170 Cal. App. 4th 1346, 1352, 88 Cal. Rptr. 3d 620 (2009) (closed hearing to consider whether charges against employee justified initiation of dismissal proceedings did not trigger notice provision where employee was thereafter provided public evidentiary hearing on charges). However, another court has held that a legislative body must give an employee notice and an opportunity for an open session before a meeting to discuss the findings of an arbitrator regarding the possible firing of the employee, even if no vote is taken at that discussion meeting, and the notice given for the subsequent "ceremonial" meeting where the legislative body voted to fire the employee did not satisfy the requirement or cure the previous violation. Morrison v. Housing Auth. of the City of Los Angeles Bd. of Comm’rs, 107 Cal. App. 4th 860, 876-76, 132 Cal. Rptr. 2d 453 (2003); see also Moreno v. City of King, 127 Cal. App. 4th 17, 28-29, 25 Cal. Rptr. 3d 29 (2005) (receiving accusations against employee and considering whether to dismiss employee based on those allegations in closed session triggered notice requirements).

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In addition to the topics listed infra, a meeting, or portion of a meeting, may be closed to discuss the appointment, employment, assignment, promotion, or compensation of government appointees, employees, or officials.  D.C. Code Ann. § 2-575(b)(10).

The Act permits agencies to go into executive session when discussing or deliberating—but not to vote upon—the appointment, employment, compensation, hiring, disciplinary action or dismissal, or periodic evaluation or rating of a public officer or employee or interviewing applicants for the position of the executive head of an agency. O.C.G.A. § 50-14-3(b)(2).

But the Act specifically provides that this exception does not apply to the receipt of evidence or when hearing argument on personnel matters, including whether to impose disciplinary action or dismiss a public officer or employee or when considering or discussing matters of policy regarding the employment or hiring practices of the agency. Id.

In addition, meetings by an agency to discuss or act on the filling of a vacancy in the membership of the agency itself must at all times be open to the public. Id.

Closed under 5 ILCS 120/2(c)(1).

These may be closed to the public. K.S.A. 75-4319(b)(1).  “Public bodies subject to the Kansas open meetings act may go into executive session to interview, discuss, and consider applicants or prospective employees of that body under the personnel matters exception to the act.” Kan. Att’y Gen. Op. 96-61.  That opinion also notes that “[b]inding action” such as making hiring decisions “may not be taken in executive session.”  Id.

General personnel matters are not the proper subject of closed sessions. See Jefferson County Bd. of Educ. v. Courier-Journal, 551 S.W.2d (Ky. Ct. App. 1977). However, discussions concerning the "appointment, discipline or dismissal of an individual employee, member or student" may be closed. See Ky. Rev. Stat. 61.810(1)(f).

There is no distinction between the word "appointment" and "election" under Ky. Rev. Stat. 61.810(1)(f), hence, the University of Louisville Foundation Inc. could properly close a meeting to consider election of member to the position of Chairman of the Board of Trustees, since all members of the Board of Trustees were also members of the governing board of the foundation. Courier-Journal v. University of Louisville, 596 S.W.2d 374 (Ky. Ct. App. 1979).

Discussions of an employee's resignation or contracts for independent contractors are not exempt and must be conducted in public. Carter v. Smith, 366 S.W.3d 414, 420 (Ky. 2012).

May be closed if discussion involves the character, professional competence or physical or mental health of a person, unless that person requests an open meeting. La. Rev. Stat. Ann. § 42:17(A)(l).

Pursuant to 1 M.R.S.A. § 405(6)(A), an executive session may be held to discuss or consider:

the employment, appointment, assignment, duties, promotion, demotion, compensation, evaluation, disciplining, resignation or dismissal of an individual or group of public officials, appointees or employees of the body or agency or the investigation or hearing of charges or complaints against a person or persons subject to the following conditions:

(1) An executive session may be held only if public discussion could be reasonably expected to cause damage to the individual’s reputation or the individual's right to privacy would be violated;

(2) Any person charged or investigated must be permitted to be present at an executive session if that person desires;

(3) Any person charged or investigated may request in writing that the investigation or hearing of charges or complaints against that person be conducted in open session. A request, if made to the agency, must be honored; and

(4) Any person bringing charges, complaints or allegations of misconduct against the individual under discussion must be permitted to be present.

This paragraph does not apply to discussion of a budget or budget proposal;

A discussion of employee salaries must take place in open session because that is a budget matter.

In addition, discussion of information contained in confidential personnel files may take place in executive session. 1 M.R.S.A. § 405(6)(F).

Meetings that concern the appointment, employment, assignment, promotion, discipline, demotion, compensation, removal, resignation, or performance evaluation of appointees, employees or officials over whom the entity has jurisdiction or any other personnel matter affecting one or more specific individuals may be closed. § 3-305(b)(1). However, this exception is to be construed narrowly and is inapplicable to discussions of issues affecting classes of public employees, as distinct from specific individuals. OMA Manual, at 4-2.

Exempt. See § 25-41-7(4)(a).

Government meetings relating to certain individual personnel decisions may be closed, provided personal information about the employee is discussed or recorded:

• hiring of an employee of a public governmental body, and
• firing of an employee of a public governmental body, and
• disciplining an employee of a public governmental body, and
• promoting an employee of a public governmental body.

The above meetings may be closed only if personal information about the employee is discussed or recorded. “Personal” information is defined to include information relating to the performance or merit of individual employees.

Any vote on a final decision made by a public governmental body, to hire, fire, promote or discipline one of its employees shall be made available to the public within 72 hours of the close of the meeting where such action occurs, provided, however, that the affected employee is entitled to prompt notice of the decision before such decision is made available to the public. See Guyer v. City of Kirkwood, 38 S.W.3d 412, 414 (Mo. 2001) (records of internal investigations into criminal misconduct may not be closed, pursuant to 610.100); Paskon v. Salem Memorial Hospital District, 806 S.W.2d 417, 423-424 (Mo.Ct.App. 1991) (holding that board of directors of hospital district could conduct closed meeting to discuss suspension of physician’s hospital staff privileges); Librach v. Cooper, 778 S.W.2d 351 (Mo.Ct.App. 1989) (holding that records reflecting severance pay paid to former superintendent of public school district are public records subject to disclosure under the Sunshine Law); Tipton v. Barton, 747 S.W.2d 325, 331 (Mo.Ct.App. 1988) (mere identification of personnel matters within a description of legal services rendered on a city attorney’s itemized monthly billing statement is not sufficient to place the statement within the employment exception); Hudson v. School District of Kansas City, 578 S.W.2d 301, 309 (Mo.Ct.App. 1979) (meeting in which school board decided to furlough several hundred probationary teachers and reassign a large number of administrative employees did not fall within the employment exception because the impelling motivation was financial. The Board was attempting to solve a huge budget deficit. The individual employees affected were not discussed).

The "dismissal, promotion, or compensation of any public employee or the disciplining of such employee, or the investigation of any charges against him" may be held in a nonpublic session, as may discussions regarding "the hiring of any person as a public employee." RSA 91-A:3,II(a) and (b). However, if the employee to be dismissed has a right to a meeting, he may require an open meeting. RSA 91-A:3,II(a).

All discussions regarding the employment or appointment of a public employee, including interviews, and all discussions regarding evaluation, promotion, disciplining or termination of a public employee may be held in closed session unless the employee requests a public meeting in writing. N.J.S.A. 10:4-12b(8). Even where a public employee is guaranteed by state statute a public hearing on termination, the public body may go into closed session to deliberate. See N.J.S.A. 10:4-12b(9); Della Serra v. Borough of Mountainside, 196 N.J. Super. 6, 10-11, 481 A.2d 547 (App. Div. 1984). But where the public body is appointing a person to fill the unexpired term of an elected official, closure is not permissible. Gannett, 201 N.J. Super. at 68-69.  However, any time a public body intends to conduct a closed meeting involving the employment, appointment, termination of employment, terms and conditions of employment, evaluation of the performance of, promotion or disciplining of any specific public officer or employee, it must provide written notice in advance to the affected employees.  See Rice, 155 N.J. Super. at 71; Kean Fed’n of Teachers, 233 N.J at 586.

A specific exemption exists under the Open Meetings Act, but an aggrieved employee entitled to an open hearing upon demand, and all final actions must be taken at an open meeting. NMSA 1978 § 10-15-1(H)(2).  Closed meetings to review contracts of contract employees for a public hospital did not violate the Open Meetings Act because the meetings fell under the personnel exception and no final actions were taken at the closed meetings.  Treloar v. County of Chaves, 2001-NMCA-074, ¶ 8, 32 P.3d 803.

Other personnel matters. Matter of Cutler v. Town of Mamakating, 137 A.D.3d 1373, 1374-1375, 26 N.Y.S.3d 409, 411 (3d Dep’t 2016) (“While a discussion of the abolishment of petitioner's specific position for reasons of economy and efficiency was a proper subject of an executive session, we agree with petitioner that the Town Board violated [OML] by inadequately describing the purpose for entering into the executive session as, simply, ‘personnel issues’.”); Matter of Fishman v. Board of Educ. of the S. Cty. Cent. Sch. Dist., 2012 N.Y. Misc. LEXIS 631 (Sup. Ct. Suffolk Cty. 2012) (Personnel matters are properly the subject of executive sessions, and matters that relate to an individual’s appointment may be conducted in closed session, but Board may not vote in executive session to create a new position);  Specht v. Town of Cornwall, 13A.D.3d 380, 786 N.Y.S.2d 546 (2d Dep’t 2004) (town’s termination of probationary police department employee in technical violation of Open Meetings Law was not annulled because no prejudice resulted and violation could be corrected by recording vote on termination in minutes of executive session); Weatherwax v. Town of Stony Point, 97 A.D.2d 840, 468 N.Y.S.2d 914 (2d Dep’t 1983) (executive session held by town board was in violation of OML; the board’s policy decision not to extend insurance benefits to police officers on disability retirement applied equally to all retirees, even though decision affected only one person when made, and thus it could not be said that the meeting was to discuss the “medical, financial, credit or employment history of a particular person”); White v. Battaglia, 79 A.D.2d 880, 434 N.Y.S.2d 537 (4th Dep’t 1980), mot. lv. appeal denied, 53 N.Y.2d 603, 421 N.E.2d 854, 439 N.Y.S.2d 1027 (1981) (appointment of school board member to fill vacancy was invalidated where meeting called on 3 1/2 hour notice with patent inadequacy of the notice); Orange Cty. Publications v. Cty. of Orange, No. 5686/78 (Sup. Ct., Orange Cty., Oct. 26, 1983) (possible salary increases for county clerk and sheriff should not have been discussed in executive session where discussion was of salary histories of the positions and not the particular persons involved).

A public body may consider the qualifications or conditions of initial employment of or investigate complaints or charges against an individual public officer or employee at a closed session. Final action on these issues must be taken at an open meeting. General personnel issues may not be considered in a closed session, and a public body must address filling a vacancy in the public body during an open meeting. G.S. § 143-318.11(a)(6). The law was amended in 1994 to eliminate the exemption permitting closed session discussions of independent contractors.

Executive sessions called by the state board of higher education to appoint or remove college or university employees, unless the person or persons involved request that the meeting be open to other persons or the public. N.D.C.C. § 15-10-17(l).

Board meetings concerning the nonrenewal, dismissal for cause, or suspension of a teacher, principal, superintendent, or directors may be closed. N.D.C.C. §§ 15.1-14-06, 15.1-14-10, 15.1-14-16, 15.1-14-20, 15.1-14-26, 15.1-14-30, 15.1-15-02, 15.1-15-06, 15.1-15-08, 15.1-15-10.

The statute permits executive sessions "to consider" the appointment, employment, dismissal, discipline, promotion, demotion, or compensation of a public employee or official. Ohio Rev. Code § 121.22(G)(1); Doran v. Northmont Bd. of Educ., 147 Ohio App. 3d 268, 770 N.E.2d 92, 2002-Ohio-386 (Ohio App. 2d Dist.) (school board complied with Sunshine Law when it held executive sessions to discuss the hiring of a superintendent).

The statute also permits executive sessions for the investigation of charges or complaints against a public employee or official, although the public body must comply with the employee's request for an open hearing where the employee otherwise has a right to a hearing. Ohio Rev. Code § 121.22(G)(1); Matheny v. Frontier Local School Bd., 62 Ohio St. 2d 362, 405 N.E.2d 1041 (1980).

The statute prohibits public bodies from holding executive sessions for the discipline or removal from office of an elected official for conduct related to the official's performance of that official's duties. Ohio Rev. Code § 121.22(G)(1).

The Open Meeting Act provides that an executive session may be held to discuss “employment, hiring, appointment, promotion, demotion, disciplining, or resignation of any individual salaried public officer or employee[.]” 25 O.S. § 307.B.1. Contemporaneous with the 1978 amendment of the Open Meetings Act, the attorney general issued an opinion stating that going into executive session to discuss salaries of individual public officers or employees was not allowed under the act. 1978 OK AG 201. In 1996, the attorney general, in response to an inquiry concerning whether a public body could go into executive session to discuss salaries, issued an opinion withdrawing the 1978 opinion and stating that executive sessions could be called for the sole purpose of discussing salaries because salaries were included in the word “employment.” 1996 OK AG 40. The opinion expanded even further on the definition of “employment,” explaining that it “include[s] continued employment and conditions of employment such as place of employment, salary, duties to be performed and evaluations.” Id. This opinion was subsequently adopted by the Oklahoma courts. See Isch, supra.

An executive session may be justified for discussions concerning employment, discipline, and dismissal of public employees under ORS 192.660(2)(a)(b) and (i).

As discussed above, this is generally a subject for executive session.

Interviews, disciplinary matters and discussions on dismissing employees are excluded by exemption (1), which includes, “Any discussions of the job performance [or] character of a person.”  Persons affected may require the meeting to be open. Note that most job interviews would be neither discussions of “job performance” nor of “character” and therefore arguably would be open.

The Attorney General found that discussions relating to the need for a particular position does not relate to the performance or character of an individual and therefore not an appropriate topic for executive session.  See Op. Att’y Gen. No. 93-05-10 (May 13, 1993), 1993 WL 208956.

A public body may hold an executive session discussion relating to the employment, appointment, compensation, promotion, demotion, discipline or release of an employee, but by the terms of the exemption the discussion must relate to an employee and not employees generally. S.C. Code Ann. § 30-4-70(a)(1).

Presumably closed. SDCL §1-25-2(1).

Open. See Dorrier v. Dark, 537 S.W.2d 888 (Tenn 1976) (holding that public school teacher's termination hearing was void because in violation of Open Meetings law). But meetings of private, nonprofit corporations receiving money from the government may not always be open. T.C.A. § 8-44-102(B) (1995).

The Act permits a closed meeting when there is discussion regarding "the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a public officer," or where the governmental body hears a complaint or charge against an officer or employee, unless the officer or employee requests a public hearing. Tex. Gov’t Code§ 551.074. The Act does not restrict the non-public disclosure procedure only to actions affecting a current employee. Hispanic Educ. Comm. v. Houston Indep. Sch. Dist., 886 F. Supp. 606, 611 (S.D. Tex. 1994) (“The law allows closed sessions for the discussion of personnel, whether the position is filled or vacant, whether an employee is to be demoted or promoted, and whether the person is a prospective or current employee. The law does not restrict the non-public procedure only to actions affecting a current employee.”). This exception does not apply to an independent contractor. Op. Tex. Att’y Gen. No. MW-129 (1980) (“A governmental body may not meet in closed session to discuss the employment of an independent contractor such as an engineering, architectural or consultant firm.”). When the discussion is not about employees but instead concerns outside consultants, the meetings must be open. See Op. Tex. Att’y Gen. No. JM-595 (1986); Op. Tex. Att’y Gen. No. MW-129 (1979) (discussion of hiring professional consultants must be in open session). Nor does the exception apply when a governmental body wants to discuss the qualifications of people who may serve on an advisory subcommittee, unless those people are employees or public officers. Op. Tex. Att’y Gen. No. DM-149 (1992). An employee or public officer who is the subject of deliberations under Section 551.074 has a right to an open hearing, but he cannot insist on a closed hearing. Op. Tex. Att’y Gen. No. JM-1191 (1990).

Personnel matters, as a rule, must be discussed in open session. However, an agency may close a meeting to receive and evaluate complaints or charges brought against a public officer or employee, to evaluate qualifications of an applicant for public employment, or to review the performance of a public employee, unless the employee requests that the meeting be open. However, final action on hiring, setting salaries, or discharging or disciplining any employee must occur in a public meeting. See RCW 42.30.110(1)(f) and (g).

The statute contains an exceptionally broad exemption for discussions of personnel matters, including "[t]he appointment, employment, retirement, promotion, transfer, demotion, disciplining, resignation, discharge, dismissal or compensation of any public officer or employee, or other personnel matters, or for the purpose of conducting a hearing on a complaint against a public officer or employee." W. Va. Code § 6-9A-4(2). Moreover, subsection (2) further provides that an executive session may be held only when a closed session is required "for the purpose of conducting a hearing on a complaint, charge, or grievance against a public officer or employee, unless [he] requests an open meeting." W. Va. Code § 6-9A-4(b) (2) (B). However, under the State Bar and Board of Medicine decisions, it is doubtful whether an adjudicatory hearing on a complaint against a public officer or employee may be conducted in a closed session.

The Act also explicitly prohibits of executive sessions to discuss or consider "general personnel policy issues" and mandates that "final action by a public agency having authority for the appointment, employment, retirement, promotion, transfer, demotion, disciplining, resignation, discharge, dismissal or compensation of an individual shall be taken in an open meeting." W. Va. Code § 6-9A-4 (b)(2)(B).

Hiring interviews may be closed. Wis. Stat. § 19.85(1)(c). Disciplinary matters may be closed. Wis. Stat. § 19.85(1)(b). Ethics advice may be closed. Wis. Stat. § 19.85(1)(h). A disciplined employee has no right, however, to have the actual vote on the disciplinary action taken in closed session. State ex rel. Schaeve v. Van Lare, 125 Wis. 2d 40, 370 N.W.2d 271 (Wis. Ct. App.). But discussions of positions, as opposed to individual employees, must be open. 80 Wis. Op. Att’y Gen. 176 (Feb. 25, 1992).