I have discussed executive sessions a couple of times in the past few months as they relate to my nonprofit clients, to school boards and Ohio’s Open Meetings Act, and to Freedom of Information Act (FOIA) requests. What is an executive session?
A executive session is any meeting that is closed to the public and outsiders and where contents of the meeting are confidential, and is typically held within an otherwise open meeting (open to the public). Very generally, executive sessions often occur when discussion involves legal issues and personnel issues. I believe I see more mishandling of executive sessions and with violations of the law than witnessing smooth and compliant executive session meetings.
The intent behind open meetings legislation–often called “Sunshine Laws”–is to ensure transparency to the public with any group or public body that receives public funds or public support of any kind. Because you receive public money, and make decisions regarding the public’s money or support, the public has a right to know what you’re doing and how you’re doing it. However, some discussions need to be kept private, namely, most legal discussions, many discussions involving sensitive personnel issues, discussions involving large contracts, among other topics. When, in the course of a board meeting, it becomes necessary to discuss sensitive topics, the board moves into private executive session.
Here is where this blog post goes from general executive-session discussion, to Ohio-specific discussion, and where I tend to see problems.
Problem #1: Abuse
The law is clear: public bodies are to vote and to conduct deliberations in public. As with everything there are exceptions, but transparency is the rule. Some boards will go into executive session excessively, and since the sessions are private, the public doesn’t know if the executive session is warranted or not. This is why Ohio has 8 reasons for going into executive session, and the justification for your executive session must fit into at least one of those reasons. See Ohio Revised Code Section 121.22(G)(1-8). And, there can be no major decisions made in executive session. There can be a lot of discussion, but an actual vote must be taken in a public meeting.
Problem #2: Procedure
I’ve been in a meeting that qualified as an “open meeting” where a board member stated that he wanted to break into an executive session, the board said “ok,” and then asked the public to leave. This was a violation of Ohio law under the Open Meetings Act.
First, there must be a motion by a board member to “adjourn” or go into executive session. That motion must, by Ohio law, contain the enumerated reason or reasons for going into executive session that are provided in Ohio Revised Code Section 121.22(G)(1-8): “If a public body holds an executive session to consider any of the matters listed in divisions (G)(2) to (8) of this section, the motion and vote to hold that executive session shall state which one or more of the approved matters listed in those divisions are to be considered at the executive session.”
The motion must be specific, not general. For example, “I make a motion to adjourn into executive session after this board meeting to discuss the following reasons permitted by the Ohio Revised Code. First, ORC section 121.22(G)(2), to discuss the purchase of public property at 555 Maple Street, where pre-disclosing information would provide unfair competitive advantage, and (3), conference with our attorney Mr. John Joe regarding legal matters.” As stated, the reasons cannot be stated generally–“Public property discussion.” The reasons given must be specific–“Discussion related to acquisition of 555 Maple Street.” Another board member then seconds the motion.
Second, a board can’t state that they are going to discuss reasons (2) and (3), then discuss other reasons in the executive session. Each executive session must be limited to the purposes stated. (Vermilion Teachers’ Assn. v. Vermilion Local School Dist. Bd. of Edn., 98 Ohio App.3d 524, 648 N.E.2d 1384 (6th Dist.1994)). In fact, boards are to use wording directly from the statute (above) in their resolution to adjourn into executive session.
Problem #3: Confidentiality
Most board members are aware that executive sessions are private, and disclosing content from these sessions is unethical. My guess is that most board members are unaware that disclosing what transpires in an executive session can be a violation of Ohio Revised Code Section 102.03(B), which is a first degree misdemeanor.
Problem #4: Consequences
Executive sessions are for discussion only. All acts and deliberations must be taken in an open meeting. Actions taken in executive sessions are void, as are actions taken in open meetings that are the result of an unlawful executive session. Courts have invalidated actions taken by a board because the board had conducted improper executive sessions.
Removal of board members by a Court is another possible consequence of improper executive sessions, and violations of Ohio’s Open Meetings Act. In two cases, school board members violated the Open Meetings Act by repeatedly holding lengthy executive sessions, then returning to the open board meeting to vote on matters discussed in the executive sessions with little to no public discussion. (Evans v. Rock Hill Local School Dist. Bd. of Edn., 2005-Ohio- 5318 and In re: Removal of Kuehnle, 161 Ohio App. 3d 399, 2005-Ohio-2373.)
The foregoing cases, and Ohio’s Open Meetings Act’s purpose and language, make it very clear that transparency is expected of public boards, and deviation from transparency should have specific, statutory reasons behind it. Executive sessions should be used when your reason fits into the list of reasons provided in the Ohio Revised Code, and actions resulting from the executive session must be taken in public during an open meeting. Trying to justify excessive executive sessions to a court will be an uphill climb for any public body.
If you have any questions about executive sessions or Ohio’s Open Meetings Act, please email me at firstname.lastname@example.org.