When the Sun Stops Shining - The Skinny on Executive Sessions
NEW SSP Feature for 2024!
If you've ever attended a city council meeting, you may have found that some things seem to happen at breakneck speed - and you leave not really knowing what just occurred. It's important that residents who want a say in how their local government and city are run be empowered to participate.
So, in that vein, we're introducing the Public Policy Corner, where former Stow City Councilman At-Large David Licate will explain the processes and procedures that govern how our local governing bodies function.
When the Sun Stops Shining
Why Public Bodies Hold Executive Sessions Behind Closed Doors
Have you attended a city council or board of education meeting only to have them recess into executive session? The whole group of decision makers move to a room outside of public view and hold a closed meeting. The public body can be gone for some time, leaving members of the audience to talk amongst themselves as they wait for the group to return. Is this legal? Aren’t public bodies supposed to meet in, well, public to discuss public business?
Ohio’s Public Records and Open Meetings laws are collectively known as the “Sunshine Laws.” (EDITOR'S NOTE: That's where Stow Sunshine Project got it's name from - to ensure Stow residents know what's going on in our local government.)
Sunshine Laws Require Transparency in Government
Sunshine laws ensure that Ohioans have access to government meetings and records. I will focus specifically on the Ohio Open Meetings Act (OMA) to explain why public bodies go behind closed doors for executive sessions.
A public body is a decision-making body at any level of government. This includes committees and subcommittees of a public body, even if these committees do not make the final decisions of the public body. A prearranged gathering (1) of a majority of the public body (2) to discuss or deliberate public business (3) is considered a meeting. A meeting may go by another name – workshop, work session, retreat – however, if the three elements above are present, then the OMA requirements apply. OMA requires a public body to give appropriate notice of its meetings, meetings must always be open to the public, and the public body must keep full and accurate meeting minutes – except in the case of permissible executive sessions.
It should be noted that courts have not been favorable to public bodies who try to get around the OMA requirements by holding serial “meetings.” Members may have one-on-one conversations with each other regarding public business, although discussing how they will vote on legislation outside an open meeting (called polling) is illegal. The public body may not circumvent the requirements of OMA by setting up back-to-back meetings with fewer than a majority of its members with the same topic of public business discussed in each. Serial meetings may occur over the telephone, by text, or other electronic communications, like email. Indeed, if a majority of members have a discussion via email on a topic of public business, it can be considered an illegal meeting in violation of OMA. The legal counsel providing a body with information via email will always remind members not to hit “reply all” and that they should ask questions one-on-one.
You will seldom see a majority of the members of a public body together in public outside of a meeting. This is to avoid the appearance or accusation that public business is being discussed outside of a noticed public meeting. Technically, it is legal for board or council members to sit together at any event if they refrain from discussing public business (for example, board members at graduation). The moment the topic turns to official business with a majority of members present – you have an illegal meeting.
Executive Session: The Exception to Sunshine Laws
An executive session is a portion of an open meeting from which the public can be excluded. These closed-door meetings are convened by the public body for a few specific purposes listed by the OMA. The proper procedure must be followed to enter executive session including a motion, second, and a roll call vote – all of which is recorded in the meeting minutes and held in open session. The closed session is attended by the public body and the people they invite. No member of the public body may be excluded from the session. Discussion must be limited to the publicly disclosed statutory purpose for the executive session and no vote or decision-making may take place during the closed session. Members may not engage in polling or discuss how they will vote when in open session.
When motioning for an executive session, the movant must site for which permissible discussion topic the session is being held. Executive sessions are limited to the following discussion topics by law:
Personnel matters. The motion to adjourn into executive session must specify the personnel matter(s) the movant wishes to discuss. A motion simply to “discuss personnel matters” is not compliant with the statute. The following are appropriate and specific reasons to adjourn into executive session to discuss personnel matters:
To consider the appointment, employment, dismissal, discipline, promotion, demotion, or compensation of a public employee or official.
To consider the investigation of charges or complaints against a public employee, official, licensee, or regulated individual, unless the employee, official, licensee, or regulated individual requests a public hearing.
A public body may not hold an executive session to consider the discipline of an elected official for conduct related to the performance of the official’s duties or to consider that person’s removal from office.
Purchase or sale of property. A public body may enter executive session to consider the purchase of property of any sort. The body may also consider the sale of property by competitive bid, or the sale/disposition of property that would put the public interest at a disadvantage to a private interest.
Pending or imminent court action. Court action is “pending” if a lawsuit has commenced. It is “imminent” if it is on the brink of commencing. Threatened litigation is considered imminent and may be discussed in the executive session. This is an opportunity for the public body to meet with their attorney to discuss the specific court action.
Collective bargaining matters. The body may adjourn into executive session to prepare for, conduct, or review a collective bargaining strategy.
Matters required to be kept confidential. Any matters that federal law, regulations, or state statutes require a public body to keep confidential.
Security matters. The public body may discuss details of security arrangements and emergency response protocols if disclosure could reasonably be expected to jeopardize the security of the public body or office.
Hospital trade secrets. Certain hospital public bodies may use this to protect trade secrets.
Confidential business information of an applicant for economic development assistance. Must specify a specific type of assistance as listed in the statute. This is to protect the interests of the applicant or possible investment or expenditure of public funds to be made in connection with an economic development project.
Certain matters related to the Veterans Service Commission must be conducted in executive session by law.
How are Open Meetings Act Violations Handled?
What happens if a public body violates the Open Meetings Act? OMA is regarded as a “self-help” statute, meaning any person can file suit in a common pleas court to enforce the law’s provisions. A person does not need to ask a public official (such as the Ohio Attorney General) to initiate legal action on their behalf. The burden of proving a violation will fall on the person filing the suit. Although the provisions of OMA are to be liberally construed and the exemptions strictly construed, persons who bring forth a frivolous or unsubstantiated lawsuit will have to pay the legal fees of the public body in addition to their own.
If the court determines a violation(s) of OMA has occurred, it will grant an injunction compelling the public body to comply with the law. Once an injunction is granted, the public body will be given steps to “cure” the violation (fix the impact of the violation). The cure may include having the public body redo the decision-making process that included illegal deliberations, discussions, and/or formal actions in a manner compliant with the law.
Further, any formal actions taken in violation of OMA are considered invalid and would have to be redone in compliance with the law. For example, a contract that was adopted by the body in violation of OMA would be void and the body would have to reapprove it. Last, if a court issues an injunction, the public body will pay the person who filed the action a $500 civil forfeiture award for each violation plus court costs and attorney fees.
What Happens in Executive Session Meetings
Much like your last trip to Las Vegas, what happens in executive session, is supposed to remain confidential.
At least, it should. The use of executive session does not by itself create confidentiality. However, Ohio law prohibits present and former public officials or employees from disclosing any information acquired during their employment that is confidential by statute or designated confidential as a necessity to properly conduct government business. Since executive sessions can only be held lawfully to discuss issues that require some form of confidentiality, and members of the public body recognize that this confidentiality was important enough to hold a closed meeting and voted to do so, it is a safe bet that much of what is discussed should be kept confidential. Members of the public body who divulge confidential information discussed in executive session may be found guilty of a misdemeanor. Public officials who knowingly violate OMA can be removed from office. In short, it is a good idea to refrain from talking about discussions had in executive session.
In my experience, most executive sessions are routine - approval of employee contracts or an update on a legal dispute. Usually, the public body stays focused on the issue that was noticed for discussion. If a member strays, others remind them to stay on task. If a member indicates how they are going to vote, they are reminded to have that discussion in public.
The confidentiality issue was better trained and ever present when I was on school board. Perhaps that is because board members attended training on Ohio Sunshine Laws and had legal counsel provide regular training on the subject. In any case, from day one it was made clear not to talk about discussions held in executive session.
I was happy to have my school board training when I was elected to city council. More experienced council members seemed to understand the rules of executive session; however, no formal training was provided, nor did council leadership prioritize training new members (particularly if they were outside their political club). It is beneficial if a school board complies with the law – we want school districts to be stable, functional, and unified governance boards. The city council, however, is a more political body than a school board (although school boards have been increasingly politicized since I served). Where the school board has direct authority over district executives (superintendent and treasurer), a city council is a separate branch of government from the executive (mayor and other elected officials like law director and finance director). Officials from the legislative (council) and executive branch may be in conflict. In a politicized environment, if a member makes a mistake regarding OMA, their political rivals are happy to use it against them.
I often wish that the public could see what happens in executive session. I fantasize about a mystical world where a statute of limitations is placed on the confidentiality rules after enough time has passed and no one can be harmed by the disclosure of information. In this fantasy world, everyone can view a recording of an executive session after a certain period. Why? First, people are unrestrained when outside the view of the public. They can be rude, aggressive, and offensive. I have witnessed more than one serious confrontation between public officials or employees during an executive session. There can be belittling and bruising exchanges that would seldom happen in public. Second, some public officials play a character in public. This facade comes down behind closed doors. I have heard other public officials at various levels of government make similar observations. In my experience, most public servants, at least at the local level, are genuine.
When Politicians Misuse Executive Session
What you see in public is what you see behind closed doors. Some, however, can win awards for political theater and duplicity.
One example of poor behavior in executive session is when a majority has already made up their minds on an issue and they refuse to have the discussion for which they adjourned. The executive session is held to give the appearance of deliberation to the public. For example, a public body must appoint a new member from time to time due to the resignation, removal, or death of an existing member. The majority may have a replacement in mind, so they refuse to put a process in place to review applicants (or it is a perfunctory process). Members may adjourn to executive session (sometimes multiple sessions) to sit in silence while the public waits outside. Of course, this type of polling is illegal, may not seat the most qualified candidate, and is disrespectful of everyone’s time.
A great example of political theater is when a member will make an impassioned plea to the body on the consequences of voting a certain way on a controversial issue. The member will detail the negative implications of not following their logic. For example, members are faced with a difficult decision when people are upset that a facility or development is being built near their home, but the zoning laws do not allow the body to legally prohibit the construction. Voting to approve the development is the unpopular vote, and it puts members at a political disadvantage although they are following the law and avoiding a lawsuit that would punish the entire jurisdiction (and the facility or development would still get built).
All members of public bodies take an oath of office that includes upholding the Constitution of the United States, and all state and local laws. In this case, the member who had vigorously argued for the body to uphold the law, then voted against it in open session to the delight of the audience, and appearing as a white knight who stood up for his constituents as the other members made the difficult and correct, but unpopular decision to uphold the law. The member chose political expediency over integrity. This is not to be confused with a member who sincerely believes that a negative vote is the right course of action and remains consistent in their beliefs – there is no duplicity there.
It has been said that sunshine is the best disinfectant. My experience has shown that to be true. Although some circumstances require closed meetings, it is a good thing that we have laws protecting open meetings. When public bodies conceal their actions illegally behind closed doors or in hidden texts or emails – they must be held accountable. Not to do so would encourage inefficiency, inefficacy, and waste at best - favoritism, distrust, and corruption at worst. The problem is that most of us do not pay enough attention when these violations of the public trust occur. To be sure, most executive sessions are for routine business that requires confidentiality to limit liability and other types of harm to private individuals and the body. Sometimes, however, these closed sessions produce great political theater including significant failures of conflict management and integrity for those of us lucky enough to be in the room where it happens (for those of you who have made it this far – can you tell me what musical this last sentence references?).
Thanks for tuning in!
Dr. Licate has a Ph.D. in Public Policy and is employed as Professor and Chair of the Department of Criminal Justice Studies at the University of Akron, where he is a Fellow at the Center for Intelligence and Security Studies.
He served as a Stow At-Large City Councilperson from 2022-2023, as part of the Public Improvements and Planning Committees. Previously, Licate served as a member and president of the Stow-Munroe Falls Board of Education from 2016 until 2020. While on the school board, Licate founded and chaired the district’s Security Committee. Licate’s other public service includes appointments to the Stow-Munroe Falls City Schools Facilities Committee and the Stow Public Safety Services Commission.
Licate has consulted for various policing and homeland security agencies on the topics of policing strategies and counterterrorism.
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