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“We’re Going into Executive Session to Discuss Personnel.” Is That Okay?

July 3, 2012  by  Paul Sullivan
Category:  Open Public Meetings Act

I've attended several local government meetings where the chair has announced that the board or council will be going into an executive session to “discuss personnel.”  It sounds as if that might be permissible, but it is not necessarily so.  Although governing bodies may conduct executive sessions to discuss some personnel issues, that ability is limited.  The fact that the discussion may touch on a subject that involves personnel does not itself allow the holding of an executive session.  To have an executive session, the subject of the session must be specifically allowed by statute.{C}

When can a governing body have an executive session to deal with personnel-related issues?  The purposes for which an executive session are set out at RCW 42.30.110(1).  By my count, there are only three authorizations for holding an executive session (out of fourteen) that relate, or could relate, to personnel issues.

Executive sessions are allowed to “receive and evaluate complaints or charges brought against a public officer or employee.”  (One must remember, though, in cities and towns a council’s role in administrative/personnel matters is very limited; this provision for executive sessions does not increase the council’s authority.)  To qualify, there first must be a complaint or charge.  The complaint or charge need not be a formal one, and it could come from an official of the local government entity, a member of its governing body, another employee, or a citizen.  The governing body's consideration of the complaint or charge may still need to be done in open session, however, if the subject of the complaint or charge requests that it be.

The council or board may also evaluate the qualifications of an applicant for public employment or review the performance of a public employee in an executive session. (“Public employment” and “public employee” includes appointed public officers.)  The evaluation may involve interviews of applicants, a review of their qualifications, or a discussion of the salaries, wages, and other conditions of employment personal to each.  Although an evaluation may be in a closed session, the hiring of a person, including preliminary votes leading to the hiring, may not be.  (This assumes that the governing body in question possesses the necessary hiring authority.)  Final action must occur at a meeting open to the public.  Performance reviews may also occur in a closed session.  Salaries, wages, and other conditions of employment applied to an individual may be discussed in a closed session, if related to the evaluation of qualifications or reviews of performance.  But, if those conditions of employment are to be generally applied to the entity's employees, the discussion must occur in a meeting open to the public.  When the council or board is ready to take final action hiring, setting the salary of an individual employee or class of employees, or discharging or disciplining an employee, that action must take place in an open meeting.

The third authorization for an executive session that can relate to personnel issues allows an executive session to discuss litigation or potential litigation with legal counsel.  Obviously, not all litigation involves personnel issues, but, if it does, the discussion can occur in executive session.  In order to discuss litigation of any kind, however, the jurisdiction’s legal counsel must be present.

Note that a council or board may also have a closed session to plan or adopt a strategy or position to be taken during collective bargaining, professional negotiations, or grievance or mediation proceedings, to review the proposals made in the negotiations or proceedings while in progress, or to actually conduct such sessions.  But the ability to hold a closed session for these personnel-related purposes is through an exemption from the Open Public Meetings Act (OPMA).  See RCW 42.30.140(4). A closed session for these purposes is similar to an executive session in that the public can be excluded from the session; however, since a closed session for these purposes is through an OPMA exemption, other rules that would apply to open meetings, such as the notice requirements, do not apply.

Thus, while it is possible to meet in an executive session to review or discuss some personnel matters, the mere fact that personnel is somehow connected with the topic does not in itself allow the meeting to be closed.  The topic must fit within one of the purposes for which an executive session may be called, and that specific purpose must be announced to the public before the closed session begins.  That announcement must contain sufficient detail for the topic of the executive session to be seen as fitting within one of the statutory authorizations for an executive session.  Meeting in executive session to "discuss personnel" is simply not sufficient.

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About Paul Sullivan

Paul worked with many local governments and authored numerous MRSC publications on local elections, ordinances, and general local government operations in his many years at MRSC. He is now retired.



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