No Expectation of Privacy
Now, for today's blog post. At city hall, there has been so many attempts to keep the public in the dark when it comes to discussions held in executive session. It seems that the city clerk or someone has convinced the board that the room where executive sessions are held are bugged. Let's get real. Merlene probably snooped around in the police department and had a brief moment of clarity and realized that the chief of police office is adjacent to the executive session room. Since she's a busy body, and thought someone might overhear her throwing another person under the bus, she probably, along with some aldermen, came up with the notion that the board room is bugged. So, they took away the citizens' access to the public records room and now hold executive session across the hallway. Now, this is not a problem but I wonder why they are so secretive about what they say in executive session. As public officials, discussing official city business, there is not expectation of privacy; which is probably why there's a problem getting a copy of the minutes from March-July; they don't want the public to know what was discussed behind closed doors. Since I am dealing with a group of individuals that refuse to adhere to the laws governing a code charter municipality, let me explain the rules of regarding the confidentiality of conversations held in executive session.
According to Mississippi Attorney General Opinion 2006-0042 Mississippi's open meetings act (Miss. Code Ann. Sections 25-41-1 et seq. (1972)) authorizes a public body to go into executive session for the specified reasons found in Miss. Code Ann. Section 25-41-7(4)(1972). This office has stated in previous opinions that there is nothing in the open meetings law that prohibits members of the board of aldermen from disclosing information discussed during executive sessions, nor does the law provide any penalties for those persons who disclose matters discussed in executive session. MS AG Op., Thomas (September 10, 2004); MS AG Op., Hickman (March 4, 1982); MS AG Op., Smith (April 3, 1984).
However, you should also be aware that Miss. Code Ann. Section 25-41-7(4)(a) provides that a public body may hold an executive session for transaction of business and discussion of personnel matters relating to the job performance, character, professional competence, or physical or mental health of a person holding a specific position. In previous opinions this office has stated that discussions related to prospective appointments to governmental boards are not a proper basis for a governmental body to go into executive session (see MS AG Op. Mitchell (August 23, 1989) and MS AG Op., Slade (January 26, 1982)). Additionally, under Section 25-41-7 (4) a change in the Main Street bylaws is not a proper matter to be discussed and voted on in executive session.
In MS AG Op., Morgan (May 21, 2004), we discussed the decision by a governing body to go into executive session as follows:
Section 25-41-7(3) also states that “[n]othing in this section shall be construed to require that any meeting be closed to the public, nor shall any executive session be used to circumvent or to defeat the purposes of this chapter.” We note that “[w]hile the exceptions to the statute are to be construed narrowly, the statute is to be construed liberally to keep public meetings open.” Gannett River States Pub. Corp., Inc. v. City of Jackson, 866 So.2d 462, 469 (Miss. 2004). Or, as stated in Hinds County Board of Supervisors v. Common Cause of Mississippi, 551 So.2d 107, 125 (Miss. 1989): We also hold that within the framework of the statutory language itself all statutory exceptions must, under the spirit and philosophy of the Act, be strictly construed against executive sessions. Ridenour v. Board of Education, 111 Mich.App. 798, 314 N.W.2d 760 (1981), and that no exception can be “as broad as the law itself.” Maser v. City of Canton, 62 Ohio App.2d 174, 405 N.E.2d 731, 735 (1978). The very purpose of the Act is for all meetings to be open, public. It therefore follows that even though an executive session might come under “personnel matters,” or another of the subjects listed under Miss. Code Ann. Section 25-41-7(4), this in and of itself is insufficient in the absence of at least a reasonably arguable basis of an actual, present need for a closed meeting on the subject. To hold otherwise would indeed be making the exception as broad as the Act itself, and emasculate the admonishment of Miss. Code Ann. Section 25-41-7(3): “… nor shall any executive session be used to circumvent or to defeat the purposes of this chapter.” It is “essential” that “public business be performed in an open and public manner.” Miss. Code Ann. Section 25-41-1.
I know that was a lot to read but let me highlight a key point that was made. According to Mississippi Code Ann. Section 25-41-7:
"There is nothing in the open meetings law that prohibits members of the board of aldermen from disclosing information discussed during executive sessions, nor does the law provide any penalties for those persons who disclose matters discussed in executive session."So, why all the secrecy? Also, according to Mississippi Code Ann. Section 25-41-1:
"...Nor shall any executive session be used to circumvent or to defeat the purposes of this chapter.” It is “essential” that “public business be performed in an open and public manner."There you have it. They are jumping through unnecessary hoops in an attempt to keep the citizens in the dark. They are discussing public business and it should be performed in an open and public manner. The only people that want to conduct business behind closed doors are liars and cowards.
Now who says the Lumberton Informer is not helping the City of Lumberton? This post alone has saved the city money in mileage, per deim, hotel and registration fees. If the city clerk keeps reading this blog, she might actually learn how to do her job. As a matter of fact, Merlene, just log on and send me a one page report showing that you were able to read and comprehend what was just posted here today and I will print you a Certificate of Completion regarding "Confidentiality of Executive Session" and you can put it in your file of training certificates. Stay tuned, because tomorrow I will discuss the use of recording devices at public meetings. Cioa.