The core requirement of the Open Meetings Act (“OMA”) is that all meetings of a public body shall be open to the public and held in a place that is available to the general public. Most municipal officials are aware of this basic requirement. However, the OMA also permits closed sessions in certain limited circumstances, and confusion sometimes arises as to when a closed session would be proper. Provided below are answers to some of the most common questions that arise, concerning closed sessions and related matters:
Q. Can our board meet in closed session to consider the termination of an employee or to consider taking other disciplinary action against an employee?
A. Yes, but only if the employee has requested a closed hearing. If the employee has not made a prior request for a closed hearing, then the matter shall be discussed only in open session. Also, even if an employee has initially requested a closed hearing, the employee can rescind that request at any time, after which the matter shall be considered only in open session.
This particular closed-session exception is stated at Section 8(a) of the OMA, which authorizes a closed session whenever a public body meets to “consider the dismissal, suspension, or disciplining of, or to hear complaints or charges brought against, or to consider a periodic personnel evaluation of, a public officer, employee, staff member, or individual agent, if the named person requests a closed hearing.”
We recommend that public bodies have a policy of requiring that all requests for closed sessions under Section 8(a) be submitted in writing. That way, if there is a later dispute about whether the closed session was lawfully convened, there is written evidence showing that a proper request for a closed session was made.
Q. Can our board meet in closed session to consider a written legal opinion from our attorney?
A. Yes, but caution must be exercised when doing this, to ensure that discussions at the closed session do not extend beyond the strictly legal advice presented in the written opinion.
This closed-session exception is stated at Section 8(h) of the OMA, which authorizes a closed session to “consider material exempt from discussion or disclosure by state or federal statute.” The provision may be invoked to consider a written legal opinion from a public body’s attorney because such a legal opinion is exempt from disclosure under another state statute – the Freedom of Information Act – as being subject to the attorney-client privilege.
As noted above, caution should be exercised when convening a closed session for this purpose, for the reason that the courts have narrowly construed this exception, holding that discussion of a written attorney opinion at a closed meeting is limited to the meaning of any “strictly legal advice” presented in the written opinion. Thus, for example, a public body could enter a closed session for the purpose of considering a legal opinion about whether a particular employee has “at will” or “for cause” employment status. However, if the employee has not requested a closed hearing, the public body could not use the closed session to consider whether the employee should be terminated or to discuss the possible reasons for doing so. These matters would have to be discussed in open session.
Q. Can a public body meet in closed session to discuss a lawsuit that might be filed by or against it?
A. Generally no. The OMA has an exception that allows a pubic body to meet in closed session “[t]o consult with its attorney regarding trial or settlement strategy,” but only “in connection with specific pending litigation . . .” In other words, a lawsuit must actually be filed and still pending (i.e., not settled or litigated to final judgment) in order for the exception to be utilized. Moreover, the closed session must be conducted in the presence of an attorney with whom the public body has an attorney-client relationship.
This exception goes on to state that it applies “only if an open meeting would have a detrimental financial effect on the litigating or settlement position of the public body.” Notwithstanding this language, the Michigan courts have held that the exception exists for the “obvious purpose of allowing a public body to prepare for litigation without having to broadcast its trial or settlement strategy to the opposition along with the rest of the general public.”
There is one important qualification to this answer. It is possible for a public body to meet in closed session to discuss a lawsuit that might be filed by or against it, but only if that topic is included in a written legal opinion from the public body’s attorney, and only if the public body’s closed-session discussions are limited to consideration of the strictly legal advice presented in that letter, as discussed above. Again, caution needs to be exercised when doing this, to ensure that discussions do not stray outside of the strictly legal advice contained in the attorney’s letter.
Q. May a public body, when properly convened in a closed session, invite private parties (such as outside consultants) into the closed session, for the purpose of assisting with the matter under consideration?
A. Yes. In a 1979 Opinion, the Attorney General concluded that a public body, upon entering a proper closed session, is not precluded from requesting the attendance of a private citizen to assist in the consideration of a matter being discussed in the closed session. For example, therefore, a public body that has properly convened a closed session for the purpose of considering the discipline of an employee could have private parties attend the closed session, for the purpose of testifying on matters relating to the employee’s conduct.
Q. Is a public body able to make a decision in closed session?
A. No. Closed sessions are for the sole purpose of discussing and deliberating upon matters within the OMA’s enumerated closed session exceptions. All decisions of a public body must be made in open session.
Q. What are the procedural requirements for entering a closed session?
A. The following are the mandatory procedural requirements for all closed session meetings of a public body:
- A two-thirds roll call vote of the members elected or appointed and serving is required to call a closed session for most purposes, although a majority vote is allowed in some circumstances, including for certain disciplinary proceedings and for certain collective bargaining sessions. When applying the two-thirds requirement to a five-member board, this means that at least four members must approve the closed session; if only three members are in attendance, a closed session cannot be called, because it is not possible to obtain the required two-thirds vote of those elected and serving.
- The roll call vote and the purpose of the closed session must be entered in the minutes of the open session. The purpose of the closed session, as recorded in the minutes, should recite, as closely as possible, one of the express closed session exceptions, as stated in Section 8 of the OMA.
- In the closed session, a separate set of minutes must be taken by the clerk or designated recording secretary. The closed session minutes must reflect the date, time, place, members present and absent, and the purpose or purposes of the closed session.
- The closed session minutes are to be retained by the clerk, and are not available to the public (unless by court order), but may be inspected by each member of the public body, even if a member was not in attendance at the closed session. (Note: a board member who releases closed session minutes to the general public may be subject to civil and criminal penalties).
Q. Are “work session” meetings exempt from the OMA’s requirements?
A. No. This is a common misperception. A “work session” is just like any other meeting under OMA – if a quorum of a public body will be present at a work session for the purpose of deliberating toward or rendering a decision on a matter of public policy, then the work session is a “meeting” that is subject to the OMA. Accordingly, a “work session” group cannot meet in closed session, except for one of the enumerated purposes listed in Section 8 of the OMA, and only if the closed session is convened in accordance with the procedural requirements listed above.
If you have questions concerning these or other aspects of the OMA, please contact Ron Redick or one of the other attorneys in our Local Government Law Practice Group, as listed on the final page of this newsletter.
"July 2012 Local Government Law Bulletin," 7/18/2012