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Executive session: a right or an abused privilege?

In Henry County, the Board of Commissioners met behind closed doors last week to discuss personnel issues, but upon returning did not release any basic information, as required by law, to the public. It was later determined that the issue circled around the Henry County Fire Department. (Staff Photo: Rachel Shirey)

In Henry County, the Board of Commissioners met behind closed doors last week to discuss personnel issues, but upon returning did not release any basic information, as required by law, to the public. It was later determined that the issue circled around the Henry County Fire Department. (Staff Photo: Rachel Shirey)

It is no secret that the topic of closed meetings has resulted in contention between elected officials and advocates of open meetings for years.

Some elected officials tend to debate that executive sessions are necessary in some cases, while others argue the information discussed behind closed doors is still the public’s business.

But when does a privilege become abused?

“Georgia executive session is a little better than what it used to be, but it’s not that much better,” said Assistant State Attorney Stefan Ritter in an open meetings seminar hosted by the Georgia Press Association.

In February, the Clayton County Board of Education Chairwoman Pam Adamson told citizens that board members were “restricted” and had to discuss personnel issues in executive session.

“State law says you have to discuss personnel issues in executive session,” Adamson said. “You cannot do it out here in front of an audience.”

However, according to Georgia’s open meetings and open records law, that’s simply not true.

“A public agency, such as the Clayton County Board of Education, is not required to meet in a closed session,” said David Hudson, an attorney considered an expert on the Open Meetings Act. “The specific text of the open meetings law at O.C.G.A. 50-14-3(b) states that ‘executive session shall be permitted for … ’ It does not say that executive sessions are required or mandatory.”

However, Adamson said she believed discussing topics such as student issues, employee issues or real estate acquisitions in public could have a waterfall effect that would hinder the end result. For instance, discussing student or employee issues publicly could pose privacy issues, and discussing future real estate could raise prices, she suggested.

Hudson went on to explain “an executive session can be convened only by majority vote of the Board or Council members in a public meeting. Thus if there is not a majority vote to meet in a closed session, the meeting must place take in the open.”

On the flip side, nothing discussed behind closed doors is binding until the issue is disclosed and voted upon in public.

Government bodies are allowed to vote to close a meeting to discuss a limited range of topics, the most common of which are pending litigation, personnel issues and real estate acquisitions, but they come with strict guidelines that Ritter said are often overlooked.

For example, he said some government entities treat “personnel matters” as an all-inclusive cloak which results in a board erring on the side of caution instead of on the side of openness.

“Personnel meetings in executive session are limited to two things — discussions among the board, commission, whoever it is, discussions among those members on a specific personnel issue, or to interview candidates for an executive head,” Ritter said, adding that the meetings they have with their employees in executive session are not legal.

He also said government bodies are not entitled to close a meeting to hear evidence on a situation — receiving evidence in a closed meeting is illegal and is therefore public.

“First they have to receive the complaint — that’s open,” Ritter explained. “Then they have to receive information regarding the complaint — that’s open — then they can meet in closed session, but they have to vote on it in an open meeting.”

Georgia’s open meetings and open records laws also permit government agencies to enter executive session to discuss the acquisition or disposal of real estate and to discuss settlements of lawsuits or claims against an agency.

But again, the board is subject to strict guidelines.

Board members are only permitted to meet privately as a quorum with their attorney present to discuss pending litigation, but there must be a formal intent to sue, or an ante litem notice, filed before the board can proceed.

“You have to have a tangible threat of litigation,” Ritter said adding if not, they have no business meeting in executive session, and the ante litem notice is an open record.

“If they haven’t received a notice, then it’s not a tangible threat,” he said “no exceptions.”

The elected body cannot go into executive session just because it thinks it might get sued.

If a government agency has a topic of discussion that meets the criteria, then it is permitted to meet behind closed doors. However, when the board members return, Ritter said they are not permitted to cloak all information from the public.

He said board members are required to state what they’re voting on following executive session, and when taking a vote, the board must give enough information for the public to identify the topic — just not the discussion.

It is not enough for a board to simply say they will vote on the personnel issue discussed in executive session.

And when a personnel topic discussed in executive session has officially closed or been resolved, the personnel records become public, Ritter said.

If members of the public are able to produce evidence that any government agency violates the law on closed meetings, they are encouraged to contact Ritter at the Attorney General’s office at 404-656-7298.