County commissions, city councils and local government committees do not have to go into executive session.
They choose to.
The state’s Open Meetings Act allows them to go behind closed doors to discuss real estate transactions, certain personnel matters and legal strategies in the case of a lawsuit, but it does not require them to do so.
When local officials decide to not allow citizens to hear their discussion on these matters, that is a choice they are making.
They could choose to discuss most of these matters before the public.
Simply because they can do something, does not mean they should do it.
Transparent government is always better government.
There may be times when it makes sense to meet in executive session, but those times should be few and far between.
The Clayton County Board of Commissioners votes to go into executive session every time they meet.
This is not what the Georgia General Assembly intended when it defined executive session as privilege and revised open meetings legislation earlier this year.
In fact, the state has said that the presumption should always be that meetings of local governmental bodies are open to the public.
Executive sessions should be used sparingly and should be the exception not the rule.
If the Clayton County Board of Commissioners meets 36 times a year and goes into executive session 35 times, is it the exception or the rule?
According to the Office of the Attorney General of the State of Georgia, the exceptions that allow for executive sessions include:
• Closed meetings held with counsel to get advice on actual or threatened litigation. If litigation is not involved (or if there is no tangible threat of litigation) then the discussion must be public.
• The acquisition or disposal or lease of real property may be considered and voted on in closed session. There must still be a subsequent public vote [O.C.G.A. § 50_14_2, 50_14_3(a)(5), (b)(1)].
• “Meetings when discussing or deliberating upon the appointment, employment, compensation, hiring, disciplinary action or dismissal, or periodic evaluation or rating of a public officer or employee or interviewing applicants for the position of the executive head of an agency. This exception shall not apply to the receipt of evidence or when hearing argument on personnel matters, including whether to impose disciplinary action or dismiss a public officer or employee or when considering or discussing matters of policy regarding the employment or hiring practices of the agency. The vote on any matter covered by this paragraph shall be taken in public and minutes of the meeting as provided in this chapter shall be made available. Meetings by an agency to discuss or take action on the filling of a vacancy in the membership of the agency itself shall at all times be open to the public as provided in this chapter” [O.C.G.A. § 50_14_3(b)(3)].
Simply having an attorney present for the meeting is not enough to warrant executive session. The presence of the attorney does not mean it is permissible to do the public’s business in private.
The AG’s office has said that a county commission, city council or any local governmental body must include in its minutes the “specific reason,” for a closed door meeting.
Is simply saying “We have a real estate matter” a “specific reason?”
This may be a question the courts will eventually have to determine.
The chairman is held responsible for making sure the closed door meeting is limited to the specific purpose for which the meeting was closed to begin with, according to the law.
The Open Meetings Act should always be interpreted with a view toward openness.
This language from the AG is important: “When in doubt the law requires openness. Exceptions are always narrowly construed.”
Violations of the Open Meetings Act and abuse of the executive session provisions can lead to a $1000 fine for a first violation and a $2,500 fine for each additional violation within 12 months.
Furthermore, the Attorney General has the power to enforce the law in civil or criminal actions.
Citizens can also file a complaint or lawsuit to hold their local government accountable.
Instead of asking “Can we?,” a better question for elected officials to ask is: “Should we?”
— Editor Jim Zachary