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What are the Proper Procedures for Holding an Executive Session?


June 26, 2012 by Pat Mason
Category: Open Public Meetings Act

When legislation was introduced in 2008 that would have required tape recordings of all executive sessions, the Office of the State Auditor cited as support for this legislation a high number of violations of the Open Public Meetings Act (OPMA) by local governing bodies.  The vast majority of these violations were procedural mistakes, many relating to how the executive sessions were being announced by the presiding officer.  It should, however, be an easy matter to prevent these types of violations from occurring.

The OPMA is very specific in its requirements as to how the presiding officer is to announce the executive session, and it is not difficult to meet these requirements.  To move into executive session, the presiding officer must first state two things:

  • The purpose of the executive session; and
  • The time when the executive session will end.

We also recommend that the announcement be memorialized in the meeting minutes.

Announced Purpose:

The announced purpose of the executive session must be one of the statutorily-identified purposes for which an executive session may be held.  These purposes are set out in RCW 42.30.110(1).  The announcement therefore must contain enough detail to identify the purpose as falling within the one of these statutorily-authorized purposes.  It would not be sufficient, for example, to announce the purpose of the executive session as being to discuss “personnel matters.”  Some personnel matters may be legitimately discussed  in executive session and some may not, so this type of announcement does not make clear whether the topic is a valid one for an executive session.  (See Paul Sullivan's blog post next week for an in-depth discussion of this issue.)

MRSC recommends that the presiding officer actually cite the specific subsection of the RCW 42.30.110(1) that authorizes the executive session and use the language from the statute itself to describe the purpose.  For example, the presiding officer would announce before the executive session that the council is going into executive session as authorized by RCW 42.30.110(1)(h) to evaluate the qualifications of a candidate for appointment to  elective office (e.g., vacant city council position).

Length of Session:

Along with announcing the purpose of the executive session, the presiding officer is to announce the time the session will end.  If the executive session is not concluded by the  announced time, then the presiding officer must announce to the public the anticipated length of the extension of the executive session.  To strictly comply with the statutory requirement, this should be done even if there is no one present in the meeting room .

On the other hand, if the executive session concludes in a shorter time than was announced to the public, the governing body should not resume the meeting until the announced time has been reached.  Otherwise, the public may, in effect, be excluded from the remaining part of the open meeting that occurs between the actual close of the executive session and the time when the chair announced the executive session will close - they may have left the meeting room, intending to return at the time stated for the conclusion of the executive session.

As a practical matter, this means that it is better to start with an announced time that is the shortest likely amount of time needed for the executive session and then add time if needed, rather than use a longer estimate and not be able to resume the meeting right away if the executive session runs shorter than expected.   Many governing bodies place the executive session on the agenda as the last item of business, so that they can come out of the executive session and adjourn the meeting and go home.

Minutes:

Minutes are not required to be kept of the executive session, and we actually recommend that minutes not be kept of the executive session to avoid a possible public records disclosure issue (there's nothing in the Public Records Act that would exempt such minutes from disclosure).  However, it is important that the minutes for the main meeting reflect in detail the announcement of the presiding officer when moving the meeting into executive session.  The minutes of the meeting are the main way the Office of the State Auditor has to determine if the OPMA is being followed by local governing bodies as to their executive sessions.  So, the minutes should contain enough detail to show that the executive session was announced properly.  Also, if the executive session is extended in time, the minutes should reflect that the public was properly informed of the time extension.

As noted, the procedural requirements to move into executive session are not complicated or difficult to comply with, but it is important that they are precisely followed and that the minutes for the meeting reflect this.

About Pat Mason

Pat is recognized throughout Washington State as a highly trusted resource on municipal law. He regularly counsels local governments on public records, open public meetings, and just about any other municipal issue that comes up.

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