November Hotline Call of the Month


Question: A newspaper received notice of an emergency meeting of a college board of trustees with attorneys. The board has a track record of going into closed session to discuss financial issues, usually citing attorney-client privilege and personnel. The newspaper suspects the meeting is to review an assessment conducted by an accounting firm. The firm conducted an operational and financial analysis. Short of having an attorney on hand to help, what can the paper do to ensure the discussion remains in open session? Can the paper ask for written reasons for going into closed session?

Answer: First, you should seriously question whether there is justification for an “emergency” meeting at all. The statute defines and permits an emergency meeting as “one called because of generally unexpected circumstances that require immediate consideration by the public body.” G.S. 143-318.12(f). These facts don’t sound like an emergency.

As for the closed meeting, the Open Meetings Law permits closed-door discussions in very few circumstances, and even then, the statute only allows for closed session when it is required to preserve some confidentiality that is recognized by statute. There are dozens of court cases that say public bodies must err on the side of openness, which means a public body can only go into closed session for the very limited purposes identified by statute. All other discussion must take place in open session.

The notice suggested a possible closed-door discussion with attorneys. That would be permitted only to allow the attorneys to provide legal advice. The Board may not then stray into discussion of the actual issues. They could go into closed session to get answers to questions such as “Do we have legal exposure from terminating the contract with Smith Landscaping?” or “Can we legally put a new dump on the empty lot beside the elementary school?” Once the attorney gives his or her advice, though, any further discussion must either (a) happen during an open session or (b) take place in a properly closed session.

To properly close a session, the Open Meetings Law requires that someone make a motion to go into closed session. The motion must state the statutory basis for going into closed session. If the purpose is to discuss pending litigation, then the litigation must be identified. If the motion is based on the “catch-all” provision of some other statute that compels confidentiality (such as discussion of student records), then the “other statute” must be identified. So, there should be no doubt in anyone’s mind the reason that a body goes into closed session.

If you have reason to know or credibly suspect that a public body is about to break the law, a letter in advance laying out the legalities is always appropriate. If it comes up on the spur of the moment, it is appropriate to stand up and object to improper closure. If that doesn’t work, an after-the-fact letter of complaint might prevent future violations. But if all else fails (and it often does), a lawsuit may become necessary to challenge what happened.