The Misuse and Abuse of Executive Sessions
For the record, the Open Meeting Act states the following: § 25-41-7. Public body holding executive sessions (1) Any public body may enter into executive session for the transaction of public business; provided, however, all meetings of any such public body shall commence as an open meeting, and an affirmative vote of three-fifths ( 3/5 ) of all members present shall be required to declare an executive session. (2) The procedure to be followed by any public body in declaring an executive session shall be as follows: Any member shall have the right to request by motion a closed determination upon the issue of whether or not to declare an executive session. Such motion, by majority vote, shall require the meeting to be closed for a preliminary determination of the necessity for executive session. No other business shall be transacted until the discussion of the nature of the matter requiring executive session has been completed and a vote, as required in subsection (1) hereof, has been taken on the issue. (3) An executive session shall be limited to matters allowed to be exempted from open meetings by subsection (4) of this section. The reason for holding such an executive session shall be stated in an open meeting, and the reason so stated shall be recorded in the minutes of the meeting. Nothing 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. (4) A public body may hold an executive session pursuant to this section for one or more of the following reasons: (a) 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. (b) Strategy sessions or negotiations with respect to prospective litigation, litigation or issuance of an appealable order when an open meeting would have a detrimental effect on the litigating position of the public body. (c) Transaction of business and discussion regarding the report, development or course of action regarding security personnel, plans or devices. (d) Investigative proceedings by any public body regarding allegations of misconduct or violation of law. (e) Any body of the Legislature which is meeting on matters within the jurisdiction of such body. (f) Cases of extraordinary emergency which would pose immediate or irrevocable harm or damage to persons and/or property within the jurisdiction of such public body. (g) Transaction of business and discussion regarding the prospective purchase, sale or leasing of lands. (h) Discussions between a school board and individual students who attend a school within the jurisdiction of such school board or the parents or teachers of such students regarding problems of such students or their parents or teachers. (i) Transaction of business and discussion concerning the preparation of tests for admission to practice in recognized professions. (j) Transaction of business and discussions or negotiations regarding the location, relocation or expansion of a business or an industry. (k) Transaction of business and discussions regarding employment or job performance of a person in a specific position or termination of an employee holding a specific position. The exemption provided by this paragraph includes the right to enter into executive session concerning a line item in a budget which might affect the termination of an employee or employees. All other budget items shall be considered in open meetings and final budgetary adoption shall not be taken in executive session. (l) Discussions regarding material or data exempt from the Mississippi Public Records Act of 1983 pursuant to Section 25-11-121. (5) The total vote on the question of entering into an executive session shall be recorded and spread upon the minutes of such public body. (6) Any such vote whereby an executive session is declared shall be applicable only to that particular meeting on that particular day.
While there has been much discussion of “transparency” around city officials’ actions, less attention has been paid to the mechanism that empowers public bodies in Lumberton to shut out the public from public meetings — the use of “executive sessions.” The “executive session” provision of the state’s open meeting statute is perhaps the most abused aspect of that law. The abuse is the result of misunderstanding, surreptitiousness, and the lack of any practical way to stop violations. Some violations are thoughtless and routine. The decision to close a portion of a public meeting has to be voted in open session during a warned meeting. Other routine violations occur when a board votes to go into executive session without giving a reason. And not just any reason will do. The reason has to be one of the reasons enumerated in the law. General “personnel matter” won’t do, for example. Neither will “legal matters.” Of the allowed reasons, several of them carry a special obligation. For these reasons, a board must — before closing the doors to the public — determine that “premature general public knowledge would clearly place the state, municipality, other public body, or person involved at a substantial disadvantage.” As the Secretary of State’s Office explains in its “Guide to Open Meetings,” this determination “requires a special review before executive session is justified.” The point is that embarrassment or sensitivity is not enough to justify closing out the public. “Substantial disadvantage” means what it says. These requirements are a lot to ask laypeople serving on boards to follow scrupulously. But it’s the cost of fulfilling the responsibility in our state constitution that public officials are at all times “accountable to the people.”