Any time a public board requires closed conversation in Executive Session, the board chair should see a yellow light: neither “Stop!” nor “Go!” but “Slow down!” Perceived secrecy now threatens a fragile trust. The chairman must be deliberate about how he handles the documents surrounding the Executive Session. While nobody outside the Executive Session will see the agenda or the minutes of the closed meeting, such materials are discoverable in litigation. There might not be an agenda for the closed meeting if it is called in the moment of the open meeting, but it’s a good idea to have one for pre-announced closed meetings – especially if more than one item will be discussed or a resolution needs to be adopted during or after the meeting. The agenda for a closed meeting includes six features not present in an agenda for an open meeting.
Is the Executive Session being held immediately prior to an open meeting? Is it being held after the open meeting concludes? Or is it being held in the middle of the open meeting? Some states allow it to be held on a different day altogether. Some, such as North Dakota, require Executive Sessions to be held immediately following an open meeting.
The agenda for the Executive Session should indicate which is the case – e.g., “5:00 p.m., prior to 6:00 p.m. meeting of the full city council.” When an Executive Session is scheduled around a regular meeting, the agenda of the open meeting should also indicate the planned time for the board to break into Executive Session.
Such specificity protects the board from accusations of spurious meetings that violate the Open Meetings Law – such as an ad hoc meeting held upon realizing that a majority of the board are present at a dinner party. Such secretive gatherings are illegal in every state. Avoiding the suspicion of such spontaneous or elite meetings requires explicit clarification of the legal place and time that the closed session actually was held. A vague reference would not do the trick. One could rightly suspect foul play if the agenda of a closed meeting stated that it was to be held “in the week before the city council meeting.”
Every state limits the reasons a closed meeting can be called, and they differ. Reasons typically include some level of personnel deliberation, setting strategies for bargaining or litigation, abatements and exemptions. The chair must know his state’s Open Meeting laws, which are published online by the Attorney General or the Secretary of State. In some states, such as North Dakota, Executive Sessions can discuss salaries, bonuses and evaluations of professional performance. Other states require those matters to be addressed in the open meeting, leaving open for closed sessions only questions of someone’s physical or mental health or criminal conduct. Some states allow votes to take place in Executive Session, while others allow discussion only.
A Swampscott, MA, School Committee lists the following rationale on its Executive Session agenda:
“To conduct strategy session in preparation for negotiations with non-union personnel
or to conduct collective bargaining sessions or contract negotiations with non-union
personnel – the Superintendent.”
In states that allow votes to be taken in Executive Session, the agenda should specify not only when the matter will be discussed, but also when it will be voted on.
The summary of the business being addressed in that meeting should be followed by chapter-and-verse quotation of the section of the state’s Open Meeting Law that permits meetings to be convened for that purpose.
In addition to the Board, the closed session might include an invited speaker, the Executive Director or Superintendent, and the board’s attorney. While the minutes will reveal who actually attended, providing more information in the agenda creates an air of transparency.
Most Executive Sessions will include the board’s attorney, and the proceedings of closed meetings are protected by attorney-client privilege. It is not required that the attorney be present unless she is rendering legal advice; even a discussion of litigation can take place in her absence, but it is a good idea to err on the side of caution.
Executive Session agendas must be thorough. The list should anticipate every possible topic that might need discussion, as Executive Sessions are less free to stray into tangential matters than are regular meetings. If the conversation around one topic leads to another, the meeting cannot turn to address that new topic if it is not stated on the agenda. In California, The Davis-Stirling Act requires each item on the Executive Session agenda to go through prescribed channels.
Determining the level of detail for the agenda is tricky; it must be sufficient to justify the closed session but not detailed enough to compromise the confidentiality that makes the meeting necessary. The agenda might read: “Issues related to the pending mediation,” but not the range of dollar amounts being considered as possible limits in the settlement. In Smith v. Laguna Sur Villas, The California Court of Appeals ruled that a board cannot be required to disclose details that would jeopardize its bargaining position. A Massachusetts ruling on closed session meeting minutes is representative; such minutes of Executive Session can be withheld from disclosure “as long as publication may defeat the lawful purpose of the executive session, but no longer.”
Front and center on the agenda for an Executive Session should be a reminder that the meeting is to be kept private. For instance, it might read:
“Please remember that all matters discussed in the executive session are confidential and not to be reported to or discussed with anyone not in attendance at the meeting. The Chair will brief directors who are unable to attend the executive session.”
It’s a good idea to repeat such a reminder one or two other times in the agenda.
Sometimes extra materials containing confidential information are needed to inform the Executive Session. For paper-based meetings, they should be distributed at the beginning of the Executive Session and collected at its close. The agenda should include a reminder at the bottom:
“Please return all materials distributed by the Chair during the executive session.”
Boards can reduce the risk of migrating materials by simply making those materials available on a board portal only to users with the proper role-based authorizations.
These six elements of closed session agendas satisfy the higher standard of care that they require. Specificity and clarity must set a conscientious tone for attendees, creating no doubt that the meeting is legally warranted and that a limited range of topics will be considered. Executive Sessions should not arouse suspicion of backroom deals in smoke-filled rooms. The paper trail must make their professionalism abundantly clear.
The Massachusetts Open Meeting Law Guide, Office of the Attorney General, October 6, 2017.
Nonprofit Governance and Management, 3rd ed., App. 19: “Sample Executive Session Agenda”
Adams Stirling Professional Law Corporation, “Executive Session Agenda” on davis-stirling.com
Emily Chan, “Executive Session Tips,” Neo Law Group website, July 23, 2012.