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What Can Be Done if an Elected Official Divulges Information from an Executive Session?


April 19, 2013 by Paul Sullivan
Category: Open Public Meetings Act

Believe it or not, but there are good reasons for a local elected governing body such as a city council or port district board of commissioners to discuss some matters in a confidential, private setting - in an executive (closed) session. This is recognized in the Open Public Meetings Act (OPMA), which provides that certain specific subjects may be discussed by such bodies in executive session. And so there are good reasons to preserving the confidentiality of discussions that properly take place in executive sessions.  

The purpose of an executive session is to allow a confidential discussion of matters that could be detrimental to the local government, its officers, or its employees, if they were to be discussed in public.  If, for example, a city’s position in litigation were openly discussed, the ability to effectively pursue or defend a lawsuit could be compromised.  If information regarding how much a fire district board of commissioners would be willing to pay for the purchase of a particular property were known, the ultimate purchasing price might increase. If there's a sensitive issue involving an employee's performance, the governing body will want to protect that employee's privacy.

Preserving confidentiality in an executive session also promotes effective discussion.  If the members of the body are concerned that what they say in executive session might be disclosed afterwards, they may be reticent to freely discuss matters.  Even if the matter discussed is no longer confidential (e.g., the property is sold or the litigation is over), members may still not want what was said in the closed session to be made public, since information might be presented out of context.

Although confidential information discussed in an executive session should stay confidential, sometimes that does not happen.  A member of the governing body may purposely, or inadvertently, divulge what was discussed.  What can or should be done then?

There are a few options that may be available for dealing with an improper disclosure of a confidential executive session discussion.  Many jurisdictions conduct their meetings using Robert’s Rules of Order.  Roberts Rules (Section 9) provides that a “member can be punished if he violates the secrecy of an executive session,” although no specific penalty is set out.  One possible sanction might be for the other members to censure the offending member, publicly rebuking him or her for violating the meeting’s confidential nature.

Some jurisdictions have gone further, adopting specific rules or ordinances dealing with confidential information.  For example, Marysville has adopted an ethics rule, Marysville Municipal Code (MMC) Sec. 2.80.045, which imposes a duty of confidentiality on city officials and employees:

The city imposes the duty of every city employee, city advisor, and city council member to maintain his confidence on any city business or information pertaining to the city of which he has knowledge regardless whether that knowledge is gained in his or her normal work . . . .

And MMC Sec. 2.80.050 provides the following penalty for ethics code violations by councilmembers:

Any elected official found guilty of a negligent violation of this chapter is subject to a civil penalty of loss of pay not to exceed one month's salary.

Renton has also adopted a rule:

In the event of any executive session as hereinabove specified, no member of the City Council, employee of the City, or any other person present during executive session of the City Council, shall disclose to any person the content or substance of any discussion or action which took place during said executive session, unless a majority of the City Council shall authorize such disclosure.

Renton Municipal Code (RMC) Sec. 1-5-2.C.  The city’s ethics code prohibits the disclosure of confidential information gained by way of one's official position (RMC Sec. 1-6-6) and makes a violation a misdemeanor, punishable by a fine and/or jail sentence.

And a state law, RCW 42.23.070(4), arguably could apply to an improper disclosure of confidential information; the statute provides:

No municipal officer may disclose confidential information gained by reason of the officer's position, nor may the officer otherwise use such information for his or her personal gain or benefit.

A violation of the above statute can result in a penalty of five hundred dollars, in addition to such other civil or criminal liability that might be imposed upon the officer by law, and may be grounds for forfeiture of office.  RCW 42.23.050.

It is not clear, though, whether RCW 42.23.070(4) is available for this purpose, since the term "confidential information" is not defined by the statute. Is information obtained in executive session necessarily “confidential information” for purposes of the statute?  There has been no case law or attorney general opinion discussing the issue, but a good argument, I suggest, could be made that it is.

It is also possible that disclosure of confidential information may constitute “misfeasance” or “malfeasance” in office or a “violation of the oath of office,” which could provide grounds for recall under RCW 29A.56.110.  Although I am not aware of any successful recall occurring on this basis, a particularly harmful violation of confidentiality could potentially support a recall effort.

This all not to say that, if a governing body discusses in executive session matters that are not authorized by the OPMA to be discussed in executive session, disclosure of that discussion would be a disclosure of confidential information; it would not be. Nevertheless, if a member (or members) of a governing body believes that the body is starting to discuss matters in an executive session that are not authorized by the OPMA to be discussed in executive session, we suggest that the member state his or her objection to continuing the discussion of such matters in executive session. If the body does not heed the objection, we recommend that the objecting member, or members, leave the session.  Any member remaining in an executive session when it is known that the subject being discussed is not a proper one for an executive session can be subject to personal liability under the OPMA. See RCW 42.30.120(1).

One final note - while discussions in executive session may be considered confidential, they may not necessarily be confidential indefinitely.  It may be that information obtained in an executive session can reasonably be disclosed at some later point, after the purpose for the executive session no longer exists (though that possibility may have some inhibiting effect upon executive session discussions, as discussed above).

About Paul Sullivan

Paul has worked with local governments since 1974 and has authored MRSC publications on local elections, ordinances, and general local government operation. He also provides training on the Open Public Meetings Act.

VIEW ALL POSTS BY Paul Sullivan

Comments

"Thanks for the useful imnformation"

Paul Sullivan on Apr 29, 2013 7:39 AM

"Err on the side of tranparency."

Chris Hutchings on Apr 25, 2013 3:22 PM

"I am not aware of any requirement that the improper meeting be reported. I suppose I would make sure that the city attorney or prosecuting attorney, as the case may be, be made aware of the problem. The person should leave the meeting, I'd suggest (and tell the other members why he/she I'd doing so)."

Paul Sullivan on Apr 25, 2013 6:33 AM

"In October, 2011, I sent an inquiry into Tim Ford, the Open Government Ombudsman, as our City Attorney had similar advice regarding RCW 42.23.070 (4), which I disagreed with. Tim Ford responded with the following: "RCW 42.23.070(4) does not apply to all matters discussed in executive session. Only that information made confidential by law. The executive session provisions do not create any express confidentiality for public records subject to disclosure under the Public Records Act. ACLU v. City of Seattle, 121 Wn. App. 544, 555 (2004). Nor do the executive session provisions create any confidentiality for discussions. You are still doing the public’s business, even in an executive session." We should always remember the legislative declaration of the OPMA: "The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created." Chris Hutchings Montesano City Council"

Chris Hutchings on Apr 21, 2013 7:14 PM

"What else should an elected official exposed to, and with knowledge of an unlawful executive session do? Should the elected official report the unlawful meeting?"

tommythombs on Apr 19, 2013 8:22 AM

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