O. Real estate negotiations

A meeting of a governmental body may be closed to discuss the consideration the governmental body is willing to offer or accept when considering the purchase, sale, exchange, lease, or market value of real property. Ala. Code § 36-25A-7(a)(6). However, if an executive session is convened, in addition to the members of the governmental body, only persons representing the interests of the governmental body in the transaction may be present during the executive session. Also, the material terms of any contract to purchase, exchange, or lease real property must be disclosed in the public portion of a meeting prior to the execution of the contract. Id.

A meeting of a governmental body may not be closed pursuant to this real property discussion exception if (1) any member of the governmental body involved in the transaction has a personal interest in the transaction and attends or participates in the executive session concerning the real property, or (2) a condemnation action has been filed to acquire the real property involved in the discussion. Id.

Real estate negotiations will generally fall within AS 44.62.310(c)(2) while they are ongoing, assuming that immediate public knowledge of such negotiations "would clearly have an adverse effect on the finances of the government unit."

Any “[d]iscussions or consultations with designated representatives of the public body in order to consider its position and instruct its representatives regarding negotiations for the purchase, sale or lease of real property” may occur in closed executive sessions.  A.R.S. § 38-431.03(A)(7).  Although it cannot select the construction site in a closed session, a public body may “discuss its position in executive session before it actually commences negotiating with a land owner or purchaser.”  Tanque Verde Unified Sch. Dist. v. Bernini, 206 Ariz. 200, 208, 76 P.3d 874, 882 (2003).

The actual negotiations may or may not be conducted in public meetings, depending on the entity negotiating on behalf of the public body (i.e., multimember special committee versus single-person attorney or representative).

When the General Assembly was debating the FOIA in 1967, an amendment was offered in the House to permit executive sessions for negotiations involving the purchase of real estate. The House initially agreed to the amendment but subsequently changed its mind and expunged the vote. Ark. Legis. Digest, 66th General Assembly, at 87, 91 (1967). During the 2001 legislative session, a bill to permit closed meetings for discussing “the purchase, sale or lease of real property” died in committee. See S.B. 589, 83d General Assembly (May 14, 2001); see also Harris v. City of Ft. Smith, 359 Ark. 355, 197 S.W.3d 461 (2004).

Closed under both Acts. A body may hold a closed session with its negotiator prior to the purchase, sale, exchange or lease of real property by or for the body to grant authority or give instructions to its negotiator regarding the price and terms of payment. Prior to the closed session, the body must identify its negotiator, the real property, and the persons with whom its negotiators must negotiate. Cal. Gov't Code §§ 11126(c)(7) (Bagley-Keene Act), 54956.8 (Brown Act).

Under the Brown Act, the legislative body shall report any action taken in closed session regarding approval of a final agreement on the sale, purchase, exchange or lease of real property. Cal. Gov't Code § 54957.1(a)(1). If its own approval renders the agreement final, the body shall report the approval and the substance of the agreement in open session at the public meeting during which the closed session is held. If final approval rests with the other party to the negotiations, the local agency shall disclose the fact of the approval and the substance of the agreement upon inquiry by any person as soon as the other party or its agent has informed the local agency of its approval. Cal. Gov't Code § 54957.1(a)(1)(A)&(B).

Closed. A public body may by two-thirds vote go into executive session to consider purchase of property for public use or sale of public property, if disclosure of information would give an unfair advantage to any person whose interest is adverse to the public interest. Colo. Rev. Stat. §§ 24-6-402(3)(a)(I) (state) and 24-6-402(4)(a) (local).

Meetings involving real estate negotiations are closed. 29 Del. C. § 10004(b)(2).

A meeting, or portion of a meeting, may be closed to discuss, establish, or instruct the public body's staff or negotiating agents concerning the position to be taken in negotiating the price and other material terms of a contract, including an employment contract, if an open meeting would adversely affect the bargaining position or negotiating strategy of the public body.  D.C. Code Ann. § 2-575(b)(2).

Negotiations for the sale or purchase of real property must be conducted openly. City of Miami Beach v. Berns, 245 So. 2d 38 (Fla. 1971); see also Op. Att’y Gen. Fla. 74-294 (1974) (single member to whom authority to acquire land is delegated cannot negotiate for such acquisitions in secret); Zorc. v. Jordan, 765 So. 2d 768 (Fla. 4th DCA 2000) (city commission’s action in voting to pay one of its commission members an allegedly unreasonable appraisal value for land acquired by the city violates the Sunshine Law because the decision was made in a non-public meeting). Although there are statutory exemptions relating to public records of certain public real estate transactions, such provisions specifically state that “nothing in this section shall be interpreted as providing an exemption from or exception to sec. 286.011.” See Fla. Stat. §§ 125.355, 166.045, and 235.054 (1995).

The Act permits agencies to go into executive session to discuss or vote to:

• Authorize negotiations to purchase, dispose of, or lease property;
• Authorize the ordering of an appraisal related to the acquisition or disposal of real estate;
• Enter into a contract to purchase, dispose of, or lease property subject to approval in a subsequent public vote; or
• Enter into an option to purchase, dispose of, or lease real estate subject to approval in subsequent public vote.

O.C.G.A. § 50-14-3(b)(1)(B)-(E). But no vote in executive session to acquire, dispose of, or lease real estate shall be binding on an agency until a subsequent vote is taken in an open meeting where the identity of the property and the terms of the acquisition, disposal, or lease are disclosed before the vote. § 50-14-3(b).

Negotiations to acquire public property may be closed. Haw. Rev. Stat. § 92-5(a)(3).

Deliberations concerning acquisition of an interest in real property that is not owned by a public agency can properly take place in executive session. Idaho Code § 74-206(1)(c).

Closed under 5 ILCS 120/2(c)(5)-(6).

Executive sessions are permitted for strategy discussions about with respect to the purchase or lease of real property up to the time a contract or option to purchase or lease is executed by the parties. Ind. Code § 5-14-1.5-6.1(b)(2)(D). An executive session is not permitted if competitive or bargaining adversaries are included in the meeting. Ind. Code § 5-14-1.5-6.1(b).

Only where premature disclosure could be reasonably expected to increase the price the governmental body would have to pay for that property or reduce the price the governmental body would receive for that property. Iowa Code § 21.5(1)(j).

A public body may recess into executive session to have preliminary discussions relating to acquisitions of public land. K.S.A. 75-4319(b)(6);  Kan. Att’y Gen. Ops. 1987-91; 1975-203. Discussion relating to the sale of public land are open to the public.  Kan. Att’y Gen. Op. 1987-91.  A private corporation supporting "the well-planned development of land along Kansas Highway 10" is not a public agency within the meaning of KOMA due to the lack of governmental control and influence. Kan. Att’y Gen. Op. 1994-42.  Also see above, “Requirement to state statutory authority for closing meetings before closure.”

"Deliberations on the future acquisition or sale of real property by a public agency, but only when publicity would be likely to affect the value of a specific piece of property to be acquired for public use or sold by a public agency," may be closed. Ky. Rev. Stat. 61.810(1)(b); see Bd. of Comm'rs of Danville v. Advocate Communs., 527 S.W.3d 803, 806 (Ky. 2017) (“Significantly, this section exempts ‘deliberation[],’ as opposed to ‘action taken.’”).

Not exempted.

Discussion of the acquisition or disposition of publicly owned property may be held in executive session only if such discussion would prejudice the bargaining position of the agency or body; the negotiation itself may not. 1 M.R.S.A. § 405(6)(C).

Meetings that relate to the acquisition of real property may be closed. § 3-305(b)(3). The Act also allows a body to close a meeting to "discuss, before a contract is awarded or bids are opened, a matter directly related to a negotiating strategy or the contents of a bid or proposal, if public discussion or disclosure would adversely impact the ability of the public body to participate in the competitive bidding or proposal process." § 3-305(b)(14).

Closed if public body is considering the “purchase, exchange, lease or value of real property” and “the chair declares that an open meeting may have a detrimental effect on the negotiating position of the public body.” G.L. c. 30, § 21(a)(6). However, closure may only occur if the purpose of the real property exception is met. Allen v. Bd. of Selectmen of Belmont, 58 Mass. App. Ct. 715, 792 N.E. 2d 1000 (2003) (stating that closure was not appropriate where representatives from property involved were present because there was no confidential negotiating position to protect).

A public body may meet in closed session "[t]o consider the purchase or lease of real property up to the time an option to purchase or lease that real property is obtained." Mich. Comp. Laws Ann. § 15.268(d).

Meetings to develop or consider offers and counteroffers on the purchase or sale of real property are closed. Minn. Stat. § 13D.05, subd. 3(c).

Exempt. See § 25-4l-7(4)(g).

Government records relating to the leasing, purchase or sale of real estate by a public governmental body may be closed. Mo.Rev.Stat. § 610.021(2). Such records, including minutes of closed meetings, may be closed even if no actual lease, purchase or sale of real estate results. See State ex rel Birk v. City of Jackson, 907 S.W.2d 181, 187 (Mo.Ct.App. 1995).

Before a “real estate” record may be closed, the public governmental body must first find that public knowledge of the transaction might adversely affect the legal consideration for that real estate. § 610.021(2); State ex rel. Birk v. City of Jackson, supra.

Minutes of closed meetings, votes or other public records approving the contract relating to the leasing, purchase or sale of real estate by a public governmental body must be made public upon execution of the lease, purchase or sale of the real estate. See State ex rel. Birk v. City of Jackson, 907 SW.2d 181, 187 (Mo.Ct.App. 1995) (holding that city properly closed minutes of closed council meetings held to discuss agreement with independent contractors to operate landfill owned by city until agreement was approved); City of St. Louis v. City of Bridgeton, 806 S.W.2d 717, 719 (Mo.Ct.App. 1991) (holding that the meaning of the term “transaction” in the real estate exception is broad enough to encompass multi-lot bulk real estate acquisition or buyout program by public governmental body, and contracts on individual lots need not be available for public inspection until buyout program is complete and knowledge of purchase prices on individual lots would not adversely affect subsequent contracts); Tipton v. Barton, 747 S.W.2d 325, 331 (Mo.Ct.App. 1988) (holding that mere reference in a public record to a real estate transaction is not sufficient to trigger application of the real estate exception; the exception applies only where the actual terms of any real estate transaction or a negotiating position of the public governmental body is reflected in the record).

No right of privacy is involved in real estate negotiations, so the meetings must be open even if the open session may cause the entity some economic disadvantage.

Negotiations for purchase of land need not be conducted at an open meeting, but deliberations of public body as to whether an offer to purchase real estate should be made should take place in an open meeting. Pokorny v. City of Schuyler, supra.

Open.

"Consideration of the acquisition, sale, or lease of real or personal property which, if discussed in public, would likely benefit a party or parties whose interests are adverse to those of the general community," may be conducted in nonpublic session. RSA 91-A:3,II(d). This provision should be limited to cases where disclosure of discussions would prevent or frustrate consummation of the proposed transaction, or inflate its cost to the public.

All discussions, including negotiations, involving the purchase, lease or acquisition of real property with public funds may be conducted in closed session. N.J.S.A. 10:4-12b(5).

May be closed pursuant to NMSA 1978 § 10-15-1(H)(6) and (8).

An executive session may be conducted to discuss the proposed acquisition, sale or lease of real property, but only when publicity would substantially affect the value. N.Y. Pub. Off. Law § 105(1)(h) (McKinney 1988).

See Johann v. Town of E. Hampton, 2011 N.Y. Misc. LEXIS 1247 (Sup. Ct. Suffolk Cty. 2011) (finding petitioners properly plead a failure by the Town Board to conduct an executive session pertaining to the sale of real property); Glens Falls Newspapers v. Warren Cty. Board of Supervisors, 195 A.D.2d 898, 601 N.Y.S.2d 29 (3d Dep’t 1993) (executive session permitted where board failed to place any evidence in the record that publicity would have affected the value of the real property); Oneonta Star v. Bd. of Trustees, 66 A.D.2d 51, 412 N.Y.S.2d 927 (3d Dep’t 1979) (board would have had to show that publicity would have substantially affected the value of the property in order to enter into an executive session to discuss the possible sale of a junior high school); Orange Cty. Publications v. Council of City of Newburgh, No. 5645/1982 (Sup. Ct., Orange Cty., March 4, 1983) (executive session held to discuss development plan for blighted area of the city which involved transactions affecting real property was in violation of the OML); Botwin v. Bd. of Educ., 114 Misc.2d 291, 451 N.Y.S.2d 577 (Sup. Ct. 1982) (where board held closed meeting allegedly to protect integrity of real estate offers and to secure the best financial return, the executive sessions held to discuss proposals for the purchase of vacant school property did not violate the OML); Devitt v. Heimbach, 109 Misc.2d 463, 440 N.Y.S.2d 465 (Sup. Ct. 1981) (executive session was improper where it was not first shown that publicity would substantially affect the value of the property); Jones v. Common Council, No. 80-506 (Sup. Ct., Chenango Cty., Aug. 13, 1980) (closed meeting was improper where publicity would not affect value of real property).

The Open Meetings Law, in G.S. § 143-318.11(a)(5), permits a public body to meet in closed session to establish price or other material terms of a real estate contract. Once negotiations are completed, final authorization to purchase or lease property must be given at an open meeting. There is no authorization for discussing the disposition of property in closed session. In an Attorney General opinion released less than a month after the 1994 amendments to the Open Meetings Law, the Attorney General’s office took the position that “a public body may not lawfully reserve for closed session discussions and instructions to staff about material terms of a property purchase contract unless the public body intends, in good faith, to negotiate over such terms.” October 17, 1994, 1994 WL 1026170 (N.C.A.G.).

Following the 1994 Attorney General opinion, the Winston-Salem Journal brought two lawsuits challenging government bodies from withholding information that should have been public, and the trial courts rendered different rulings. In Piedmont Pub. Co. v. Surry Co., 24 Media L. Rep. (BNA) 1371 (N.C. Sup. Ct. 1995), the Surry County Commission authorized in closed session the purchase of option contracts on five parcels of property. The court found, “There was no requirement for the board to hold a closed session with regard to the location of the parcels described in the proposed option contracts, the names of the owners, or the intended use or uses of the properties, as Defendants have failed to make any showing of a need or desire to establish, or to instruct staff concerning, any negotiating position to be taken upon these aspects of the proposed option contracts.” In Piedmont Pub. Co. v. Kernersville Board of Aldermen, Case No. 95 CVS 5884 (Forsyth Co. Sup. Ct., 1996), the court reached the opposite result, finding that the public body had an interest in keeping confidential essentially all information about the proposed transaction until the culmination of the purchase.

Most recently, the Court of Appeals ruled in Boney Publishers Inc. v. Burlington City Council, 151 N.C. App. 651, 657, 566 S.E.2d 701, 705 (2002), that “the language of G.S. § 143-318.11(a)(5) does not permit a public body to deny the public access to information which is not a material term subject to negotiation regarding the acquisition of real property. Therefore, we hold that a public body, such as defendants here, may not reserve for discussion in closed session, under the guise of G.S. § 143- 318.11(a)(5), matters relating to the terms of a contract for acquisition of real property unless those terms are material to the contract and also actually subject to negotiation.”

A governing body may hold an executive session to discuss negotiating strategy or provide negotiating instructions to its attorney or other negotiator regarding litigation, adversarial administrative proceedings, or contracts, which are currently being negotiated or for which negotiation is reasonably likely to occur in the immediate future. N.D.C.C. 44-04-19.1(9). The executive session may be held only when an open meeting would have an adverse fiscal effect on the bargaining or litigating position of the public entity. N.D.C.C. 44-04-19.1(9).

All discussion about real estate must be in open session, except:

· The purchase of property for public purposes if premature disclosure of information would give an unfair competitive or bargaining advantage to a person whose personal, private interest is adverse to the general public interest. Ohio Rev. Code § 121.22(G)(2).

· The sale of property at competitive bidding if premature disclosure of information would give an unfair competitive or bargaining advantage to a person whose personal, private interest is adverse to the general public interest. Ohio Rev. Code § 121.22(G)(2).

Public bodies may discuss the purchase or appraisal of real property in executive session. 25 O.S. § 307.B.3. An executive session is limited to the members of the public body, its attorney and staff. No landowner, broker, developer or any other person who may profit directly or indirectly from the proposed transaction may be present or participate in the executive session. 25 O.S. § 307.D.

Negotiations concerning real property transactions may involve exempt public records and therefore could be conducted in an executive session under ORS 192.660(1)(f).

A subject for executive session until an option or sales agreement is obtained. 65 Pa.C.S.A. § 708(a)(3).

Exemption (5) excludes discussions or considerations related to the acquisition, lease or disposition of a public property, but only where advanced public information would be detrimental to the public.  R.I. Gen. Laws § 42-46-5(a)(5).

Discussion of negotiations incident to the sale or purchase of property may be held in executive session. The argument can be made that the public body can only discuss its negotiating position in a session closed to the public, but if it wants to negotiate as a body it must do so in public. S.C. Code Ann. § 30-4-70(a)(2).

Closed in cases of state-owned businesses, but it is uncertain whether this applies to agencies in general. SDCL §1-25-2(5).

State board of equalization meetings are subject to the Act. Op. Att'y Gen. No. 85-105 (April 8, 1985); however, T.C.A. § 10-7-504(a)(6) makes confidential state agency records containing opinions of value of real and personal property intended to be acquired for public purposes prior to final acquisition.

Section 551.072 provides that meetings may be closed regarding "the purchase, exchange, lease, or value of real property if deliberations in an open meeting would have a detrimental effect on the position of the governmental body in negotiations with a third person." The exemption was created to keep a governmental entity from having to "'telegraph its punch' in an open meeting to the detriment of the taxpayers, not to use it as a blank check to cut a deal in private, devoid of public input or debate.." Finlan, 888 F. Supp. at 787. Under this exemption, members of a governmental body "'may consult with their employees in private, but may not consult with other third parties in private.'" Id. (quoting Op. Tex. Att’y Gen. No. DM-191 (1992)). Thus, "[w]hen third parties are allowed into closed meetings where they can observe [the governmental body's] deliberations, the privilege is waived so that the public cannot be legitimately shut out." Id.

Strategy sessions relating to the purchase, exchange, lease, or sale of real property are exempt from the Open Meetings Act under certain conditions. Utah Code § 52-4-205(1)(d).

Closed if meeting concerns the negotiating or security of real estate purchase or lease options for a public body. 1 V.S.A. § 313(a)(2).

Discussions concerning the acquisition of real property for a public purpose, or the disposition of publicly held real property may be closed, where open discussion would adversely affect the bargaining position on negotiating strategy of public body. Va. Code Ann. § 2.2-3711.A.3.

An agency may close a meeting of the governing body to consider the selection of a site or the acquisition of real estate by lease or purchase when public knowledge regarding consideration likely would increase the price. Similarly, a public agency may close a meeting of the governing body to consider the minimum price at which real estate will be offered for sale or lease when public knowledge regarding the considerations likely would lower the price. See RCW 42.30.110(1)(b) and (c).

"Matters involving or affecting the purchase, sale or lease of property" may be discussed in executive session. W. Va. Code § 6-9A-4(9).

Real estate negotiations may be closed “whenever competitive or bargaining reasons require.” Wis. Stat. § 19.85(1)(e); see State ex rel. Citizens for Responsible Dev. v. City of Milton, 2007 WI App 114, 300 Wis. 2d 649, 731 N.W.2d 640 (the exception must be narrowly construed, authorizing closing only that part of a meeting in which negotiating strategy is discussed).

A governing body of an agency may hold closed executive sessions regarding real estate purchases if the governing body determines that publicity might cause a price increase of the real estate in question. Wyo. Stat. § 16-4-405(a)(vii) (1977, Rev. 1982). In 2015, the Wyoming Supreme Court ruled that an executive session held by a school regarding the potential for building a community recreation center at the local high school did not fall within provision allowing for executive sessions when discussing purchase of real estate or the selection of a site for a government facility when disclosure would likely cause an increase in price.  Sheridan Newspapers, Inc. V. Sheridan County School District #2, 2015 Wy 70.  The Court ordered executive session minutes from the improper meetings released. The court also required requiring governmental entities to follow W.R.C.P. 26(b)(5) when asserting a privilege by describing the nature of the privileged communication that, without revealing the privileged information, will enable the other party to assess the applicability of the privilege.  It also ruled that the “deliberative process privilege” adopted pursuant to the Wyoming Public Records Act did not apply to the Public Meetings Act.