Executive Sessions: Tricks and Traps
Executive Sessions: Tricks and Traps
by Carrie Connelly
Oregon Public Meetings Laws and Executive Sessions
Oregon’s public meetings laws were enacted to ensure that the “decisions of governing bodies [are] arrived at openly.” ORS 192.620. As a result, your governing body’s authority to close portions of its meeting to members of the public (known as “executive sessions”) is limited. As such, ORS 192.660 lists the only allowed executive sessions, each of which should be read very narrowly. Even if your subject matter does fall within a permitted executive session, be wary – prerequisites may apply. As not all limits and requirements are set out in ORS 192.660, this area of the law is easily misunderstood and frequently misapplied.
- How to Open and Close an Executive Session.
A governing body may hold an executive session only after the presiding officer has identified the statutory authorization for holding the executive session. Making this required announcement for a stand-alone executive session or one held before the regular meeting can be tricky. To meet all requirements, list planned executive sessions on the meeting agenda, along with other meeting topics. The agenda should identify the specific statutory cite. For example, if your entity plans to hold an executive session to discuss candidates for an open executive officer position, the agenda would list an executive session pursuant to ORS 192.660(2)(a), to consider the employment of a public officer, employee, staff member or individual agent. The agenda need not provide further details, but should be published following your entity’s general practice for noticing all public meetings.
While legal, we recommend against adding an executive session after an agenda is issued, except in rare situations. Some governing bodies always place an executive session item on the agenda as a place holder. We recommend against this practice. Only place executive sessions on your agendas for planned discussions.
During the meeting, before entering into executive session, announce the statutory basis for the executive session. Chairs benefit from following a script when making such announcements. The Oregon Attorney General’s Office has a sample script available on its website;
We recommend that the Board Chair tailor this script for each executive session, print it out, and have it handy for all executive sessions.
An “executive session ends when the meeting ceases to be closed to the public.” If a decision is required as a result of the executive session discussion, or the public meeting will otherwise continue after the executive session, “the governing body must use reasonable means to give actual notice to interested persons that the meeting is again a public meeting.” OAR 199-040-0015(3).
This requirement is not met by announcing at the end of the executive session that the meeting is now open, then proceeding with a vote. Legal options include announcing the specific time the public may return prior to the executive session. Alternatively, it may be enough to open the meeting door and invite in waiting members of the public.
- Employment of Public Officers, Employees, and Agents.
ORS 192.660(2)(a) allows a governing body to meet in executive session to consider the hiring of an employee (usually a chief executive officer). What this statute doesn’t say is that ORS 192.660(7)(d) sets prerequisites that must be satisfied before such an executive session may be held. Before considering a hiring decision in executive session, your entity must: (1) advertise the vacancy; (2) adopt regular hiring practices; (3) provide the public an opportunity to comment on the potential hiring; and, (4) for chief executive officers, adopt hiring standards, criteria, and policy directives in open meetings with the opportunity for public comment. In sum, an executive session under ORS 192.660(2)(a) may only be held if the local government first complies with ORS 192.660(7)(d).
To satisfy these requirements, your entity must first hold an open meeting prior to its executive session. At this earlier public meeting, the Board can authorize staff to publish the vacancy, adopt a hiring process for the position (if your personnel policies do not already provide a process), and open a public hearing to allow the public to submit comments on the position and hiring process. With these prerequisites addressed, the Board can then go into executive session to consider candidates and manage its hiring process.
Keep in mind, a governing body cannot discuss a prospective employee’s salary in executive session; that discussion and any related decision must occur in open session. Along these lines, no final decision on the position may occur during executive session. A final decision includes selecting a finalist but does not include identifying top candidates, or even designating a finalist with whom an entity representative will negotiate a contract (the final contract would then be brought back for the full governing body to approve in open session).
Last, note that this provision does not allow a Board to meet in executive session to fill a vacancy. The executive session allowance applies to the hiring of employees, not the appointment of individuals to elected positions.
- Legal Counsel
ORS 192.660(2)(h) allows a governing body to hold an executive session to discuss, with its legal counsel, its “legal rights and duties . . . with regard to current litigation or litigation likely to be filed.” Governing bodies are routinely tempted to stretch this exception to include discussions on any “legal matter.” Prior to scheduling such an executive session, confirm that: (1) the discussion is directly with legal counsel, who will be present; (2) the discussion concerns your entity’s specific legal rights and duties; and (3) those rights and duties arise in the context of actual litigation in which your entity is either named or which is about to be filed. ORS 192.660(2)(h) does not justify general discussion of your entity’s legal rights, risks, or liabilities, with or without your attorney’s presence.
Conclusion
Executive sessions can be useful tools to allow governing bodies to discuss confidential matters not yet appropriate for general public knowledge. However, as illustrated above, executive sessions are authorized for only a limited number of reasons under limited circumstances. Be sure that your board or council is familiar with the allowances and limitations of ORS 192.660 and related statutes and rules before calling an executive session. When in doubt, check with legal counsel before noticing the meeting to ensure that all requirements are properly met.
