Open Meetings

5. What rules govern closed sessions, and what sessions may be closed?

Appropriately, meetings that may be closed to the public (formerly called “executive sessions”) now are called “closed sessions.”^[28]

The General Assembly made a significant improvement in the Open Meetings Law in 1994 by requiring that even if a session is closed, the body still must maintain “full and accurate minutes” of the meeting, and the minutes shall be public when the reason for closure no longer exists.^[29] This provision was further strengthened by a 1997 amendment requiring closed session minutes to be sufficiently complete that a person not in attendance at the closed session would have a reasonable understanding of what took place.^[30] The public will, at a minimum, have the ability to scrutinize closed meetings retroactively to determine whether they should have been closed. Knowing that their actions later will be examined may deter public officials from illegally closing meetings. The only qualification of this requirement is that the minutes may be withheld so long as disclosure of the record would “frustrate the purpose of a closed session.”^[31] This means that some minutes will become public fairly quickly (such as those related to a land purchase) while others will never become public (such as deliberations about personnel).

Every motion to hold a closed meeting must reference the “name or citation” of the law that provides the basis for closing the meeting.^[32]  A public body may only go into a closed session after a motion and a vote in an open meeting. In Knight v. Higgs, the Court of Appeals held that the Edgecombe County Board of Elections violated the Open Meetings Law by going into closed session on two occasions without complying these procedural requirements.^[33]  If it is the general exemption to prevent disclosure of confidential or privileged information pursuant to the laws of North Carolina or information not considered a public record within the meaning of Chapter 132, the person seeking closure must state the name or citation to the law that renders the information privileged or confidentia1.^[34] If the motion is based on pending litigation, the person seeking closure must identify the parties to the lawsuit.  Our courts have made clear, however, that there need not be pending litigation to go into closed session under that provision.^[35]

The law includes a statement of public policy to limit closed sessions to those necessary to achieve the goals specifically enumerated in the “closed session” section.^[36] This language reinforces the rule that “exceptions to our open meetings law should be strictly construed and that those seeking to come within the exceptions should have the burden of justifying their action.’’^[37] In other words, when a public body is in doubt as to the requirements of the Open Meetings Law, it must proceed on the side of openness.  

There are nine bases for convening a closed session:^[38]

1)        Confidential and privileged information. A public body may close a meeting to prevent disclosure of information that is privileged or confidential under state or federal laws or information that is not considered a public record under the N.C. Public Records Law.^[39]

2)        Honoraria. A public body may close a meeting to prevent the premature disclosure of an honorary degree, scholarship, prize or similar award.^[40]

3)        Attorney-client privilege. As a result of changes to the Open Meetings Law and recent court decisions, a public body may close a session to consult with an attorney concerning the handling or settlement of a claim, judicial action or administrative procedure,^[41] or for any general attorney-client privileged matters.^[42] The terms of a settlement (other than of a medical malpractice case) approved or considered in a closed session must be reported and entered into the minutes as soon as possible within a reasonable time after the settlement is concluded. If the discussions in the closed meeting concern potential claims or legal challenges, the trial court has the discretion following an in camera (in the judge’s chambers) review to keep them closed if doing so goes no further than to protect the ongoing efforts of a public body.^[43] The statute explicitly states that nothing in this section shall be construed to permit a public body to close a session simply because its attorney is present.^[44] The law also requires that every motion to close a meeting under this provision must reference the lawsuit and the parties about which or whom the public body expects to receive advice.^[45]

4)        Industry/business expansion. A public body may discuss matters relating to the location or expansion of industries or business in the area served by the public body, including agreement on a tentative list of economic development incentives that may be offered by the public body in negotiations. The action approving the signing of an economic development contract or commitment, or the action authorizing the payment of economic development expenditures, shall be taken in an open session.^[46]

5)        Real estate acquisitions and employment contracts. A public body may meet in a closed session only to establish (or instruct its agents concerning) its position with regard to negotiating (i) the price or other material terms of a real property acquisition or (ii) the compensation or other material terms of an employment contract.^[47]  In 2002, the Court of Appeals held that in ordinary circumstances, a public body must disclose the location and intended use of a property under discussion for purchase.^[48] 

6)        Specific personnel and employee issues. A public body may consider the qualifications or conditions of initial employment of or investigate complaints or charges against an individual public officer or employee at a closed session.  Final action on these issues must be taken at an open meeting.^[49] General personnel issues may not be considered in a closed session, and a public body must address filling a vacancy in the public body during an open meeting.^[50]

7)        Criminal misconduct. A public body may plan, conduct or receive reports regarding investigations of alleged criminal conduct in closed session.^[51]

8)        Emergency response plans.  A local school board may meet in closed session to formulate an emergency response plan to incidents of school violence.^[52]

9)        Public safety.  A public body may discuss and take action related to existing or potential activity. ^[53]

Public bodies may not consider the employment, performance or discharge of an independent contractor in a closed session.

References