Tuesday, August 9, 2022

Explainer: Closed sessions, what they are, why they matter, and when they are permitted

City Council approved changes to the city's policy regarding paid time off if the city closes due to natural disasters (Port City Daily photo / File)
Government meetings are, for the most part, open to the public, but sometimes elected boards can enter into closed sessions. (Port City Daily photo / File)

SOUTHEAST N.C. — In North Carolina, meetings of public boards and bodies are required to conduct their business in public — in fact, the requirement is enshrined in Article 33C of State Statute 143.

That’s because lawmakers, elected leaders, and any other governmental board serve at the will of the people and are conducting the people’s business.

State law reads, “Whereas the public bodies that administer the legislative, policy-making, quasi-judicial, administrative, and advisory functions of North Carolina and its political subdivisions exist solely to conduct the people’s business, it is the public policy of North Carolina that the hearings, deliberations, and actions of these bodies be conducted openly.”

For those who have never been involved in local politics and have never witnessed a City Council or County Commissioner meeting, they generally follow a similar format.

First, the elected officials call the meeting to order to formally start the meeting. Typically after an invocation of sorts, the elected body gets to work making decisions that will shape the future of their respective localities. Things like rezoning requests, special use permits, and resolutions in support of different causes are presented, and then the board will typically cast their votes on the different items.

All of this is done in the open — but not everything a board does is public.

In general (again, not every board is the same), after all the items of business have been discussed, the board hears from their attorney and if needed, will move to enter into closed session. Regardless of the reason for a closed session, meeting minutes are expected to be provided outlining the discussion held in the meeting.

What does the state allow?

The State of North Carolina allows for closed sessions for a number of different reasons, but it is worth noting that almost everything discussed in a closed meeting can be discussed outside of the said meeting.

There are nine different purposes a board can enter into a closed meeting.

These include:

  • To prevent the disclosure of information that is privileged or confidential pursuant to the law of this State or of the United States, or not considered a public record within the meaning of Chapter 132 of the General Statutes.
  • To prevent the premature disclosure of an honorary degree, scholarship, prize, or similar award.
  • To consult with an attorney employed or retained by the public body in order to preserve the attorney-client privilege between the attorney and the public body, which privilege is hereby acknowledged. General policy matters may not be discussed in a closed session and nothing herein shall be construed to permit a public body to close a meeting that otherwise would be open merely because an attorney employed or retained by the public body is a participant. The public body may consider and give instructions to an attorney concerning the handling or settlement of a claim, judicial action, mediation, arbitration, or administrative procedure. If the public body has approved or considered a settlement, other than a malpractice settlement by or on behalf of a hospital, in closed session, the terms of that settlement shall be reported to the public body and entered into its minutes as soon as possible within a reasonable time after the settlement is concluded.
  • To discuss matters relating to the location or expansion of industries or other businesses in the area served by the public body, including agreement on a tentative list of economic development incentives that may be offered by the public body in negotiations, or to discuss matters relating to military installation closure or realignment. Any action approving the signing of an economic development contract or commitment, or the action authorizing the payment of economic development expenditures, shall be taken in an open session.
  • To establish, or to instruct the public body’s staff or negotiating agents concerning the position to be taken by or on behalf of the public body in negotiating (i) the price and other material terms of a contract or proposed contract for the acquisition of real property by purchase, option, exchange, or lease; or (ii) the amount of compensation and other material terms of an employment contract or proposed employment contract.
  • To consider the qualifications, competence, performance, character, fitness, conditions of appointment, or conditions of initial employment of an individual public officer or employee or prospective public officer or employee; or to hear or investigate a complaint, charge, or grievance by or against an individual public officer or employee. General personnel policy issues may not be considered in a closed session. A public body may not consider the qualifications, competence, performance, character, fitness, appointment, or removal of a member of the public body or another body and may not consider or fill a vacancy among its own membership except in an open meeting. Final action making an appointment or discharge or removal by a public body having final authority for the appointment or discharge or removal shall be taken in an open meeting.
  • To plan, conduct, or hear reports concerning investigations of alleged criminal misconduct.
  • To formulate plans by a local board of education relating to emergency response to incidents of school violence or to formulate and adopt the school safety components of school improvement plans by a local board of education or a school improvement team.
  • To discuss and take action regarding plans to protect public safety as it relates to existing or potential terrorist activity and to receive briefings by staff members, legal counsel, or law enforcement or emergency service officials concerning actions taken or to be taken to respond to such activity.
  • To view a recording released pursuant to G.S. 132-1.4A.

All of these items are quite specific and are intended to ensure private information is not released to the public. However, it’s not enough for a board to simply enter into a closed session and claim it is one of the permitted purposes.

The motion to enter into a closed session must be made in an open meeting and the motion must cite the purpose of the meeting. Further, if a board wants to cite attorney-client privilege as a reason for a closed session, they must explain what makes the subject matter confidential information.

According to state law, “A public body may hold a closed session only upon a motion duly made and adopted at an open meeting. Every motion to close a meeting shall cite one or more of the permissible purposes listed in subsection (a) of this section. A motion based on subdivision (a)(1) of this section shall also state the name or citation of the law that renders the information to be discussed privileged or confidential.”

Likewise, if a board chooses to enter into a closed session citing section (a)(3) to discuss pending litigation or settlements, the board is supposed to list the parties involved in the lawsuits.

Questionable meeting practices

However, as seen across the Cape Fear region, there have been several instances of questionable closed sessions called by various boards across the area.

For example, the Town of Wrightsville Beach has been observed entering into closed sessions to discuss pending litigation but failing to name the parties involved in those lawsuits. Town Attorney Brian Edes defended the actions taken by the Wrightsville Beach Board of Aldermen and past action taken by the town’s previous attorney. He claimed the town ‘acted in good faith’ by citing the statute and giving a reason for the closed meetings.

There have been several related issues, all featuring what appear to be flagrant violations of open meeting law:

Open meeting laws and other ‘sunshine’ laws (which are laws created to ensure transparency in government) are essential to the foundation of our system of government, ensuring that the people elected are conducting the business of the people in public.

As far as some common misperceptions, UNC School of Government outlines a few to help people understand what is protected and what government officials can discuss.

Misconceptions

One of the most common misperceptions, which is actually used by public officials to prevent people from knowing what was discussed in a closed session is that it is illegal to disclose information from a closed meeting.

This is false.

“There is no statutory prohibition on disclosing information, but some information is confidential under other laws,” according to the SOG.

There are things, like personnel records that must remain confidential, but things like an attorney-client privilege only extend to what a lawyer can disclose to the public. Elected officials are not bound to secrecy and can share information from closed sessions if they choose to.

Another misperception is that only the public body and select employees can attend a closed session.

“The board is generally free to invite anyone it deems appropriate to participate in a closed session except in those cases noted above, when the legal purpose for the closed session restricts who may attend,” according to the School of Government.

Ultimately, it is up to the board as well as attorneys to ensure the law is followed, and up to the public to understand what their government is doing behind closed doors.


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