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August 28 2018

Exercising Caution When Entering a Closed Session

By: Ronald M. Redick

Over the past few months, the Court of Appeals has issued three opinions in cases involving successful claims against the Delta College Board of Trustees, for alleged violations of the Open Meetings Act (“OMA”), in connection with closed session meetings. One of the three opinions, Vermilya v Delta College Board of Trustees (July 31, 2018), is published, and therefore establishes state-wide precedent concerning the procedures that must be followed when entering a closed session.

In view of these recent decisions, we take this opportunity to answer some of the more common questions that arise, in connection with the convening of a closed session:

Q.  What are the procedural requirements for entering a closed session?

A. The following are the mandatory procedural requirements for all closed sessions 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 vote to 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 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 stated in the motion and 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 addition, the recent Vermilya opinion clarifies that, if a closed session is for the purpose of meeting with the public body’s attorney to discuss trial or settlement strategy in connection with specific pending litigation, the motion must specifically recite, by name, the litigation that will be discussed in closed session. Similarly, if a closed session is for the purpose of considering a document that is exempt from disclosure by law (such as a privileged written communication from the public body’s attorney), the motion must generally describe the document that will be discussed, but not so specifically that it would defeat the purpose of nondisclosure.
  • 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. If we meet in closed session to discuss our attorney’s recommendation with regard to litigation strategy or settlement of pending litigation, how do we approve the attorney’s recommendation?

A. For starters, this type of decision must be made in open session. Closed sessions are for discussion and deliberation only; all decisions of a public body must be made in open session. With regard to the substance of the open session motion, one of the recent opinions involving the Delta College Board of Trustees addressed the specificity that is required when a motion is made involving the attorney’s closed-session recommendations. The Court held that the OMA is not satisfied if the public body simply adopts a motion to “accept the attorney’s recommendation.” Rather, the Court held that the motion must more specifically identify the subject matter of the recommendation. For example, if the attorney’s recommendation was to make an offer to settle a pending lawsuit on certain terms, the motion made in open session should state: “Move to accept the attorney’s recommendation to settle [name of lawsuit] on the terms discussed in closed session.” The Court reasoned that this type of motion would adequately inform the public of the nature of the decision being made, without disclosing the particular terms of the settlement offer, which would remain confidential.

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. Other than meeting with our attorney to discuss specific pending litigation, what are the other reasons a public body may meet in a closed session?

A. Section 8 of the OMA lists each of the eleven specific purposes for which a public body may lawfully meet in a closed session. In addition to being able to meet with the public body’s attorney to discuss specific pending litigation, the following are some of the more common purposes for which a public body may lawfully meet in closed session:

  • To consider the termination of an employee or to consider taking other disciplinary action against an employee, 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.
  • To consider material exempt from discussion or disclosure by state or federal statute. This most commonly applies to materials that are exempt from disclosure under the Freedom of Information Act, such as privileged written communication from the public body’s attorney. However, the exception is not limited to FOIA-exempt documents only; other statutes provide for nondisclosure, and could be invoked as a basis for a closed session.
  • For strategy and negotiation sessions connected with the negotiation of a collective bargaining agreement, but only if either negotiating party requests a closed hearing.
  • To review and consider the contents of an application for employment or appointment to a public office, but only if the candidate requests that the application remain confidential.

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.