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Wednesday, September 23, 2015

A Motion to Enter Closed Session for "Personnel" is Not Sufficient

The 7th binding opinion from the PAC office deals with the Open Meetings Act and is the subject of today's blog post.  In PAC Op. 15-007, the PAC found a finance committee of a county board in violation of the OMA relating to a closed session.

The PAC's review of this matter was initiated by a local reporter, who claimed that the finance committee improperly went into closed session at its meeting.  First, the reporter argued that the committee did not state the reason why it was going into closed session. Second, the reporter claimed that the topics discussed in closed session were not appropriate subjects.  The committee responded that it discussed two matters in closed session: (1) a county employee hiring freeze and (2) the termination of an employee position. 

The PAC requested the minutes and recording from the closed session, but the committee could not provide a copy of the verbatim recording because it responded that the recorder was not functioning properly.  In its opinion, the PAC first determined that the committee failed to comply with Section 2a that requires the public body to identify the applicable exemption before going into closed session. The minutes noted that the body made the following motion to go into closed session:
Member Friedrich moved and Member Pitman seconded to enter into executive session to discuss personnel. The motion passed unanimously.
According to the PAC, "a mere reference to 'personnel' does not adequately identify any exception that authorizes a public body to close part of a meeting."  Because the committee failed to adequately disclose what personnel issue it would be discussing (i.e., appointment, employment, compensation, discipline, performance, or dismissal), it violated 2a of the OMA.

Second, the PAC determined that only a portion of the committee's closed session discussion of elimination of a county employee position was a proper discussion - that portion that focused on the evaluation of a specific employee - but that any part of the discussion that related to budgetary reasons to eliminate the position was required to be conducted in open session.

Finally, the PAC rejected the committee's argument that the hiring freeze discussion was appropriate under the "collective negotiating matters" exemption because the county was not currently in any negotiations with union representatives. Instead, the county was discussing a county-wide hiring freeze that is not authorized in closed session.

The lesson to gain from this opinion is that a mere reference to "personnel" as a reason to go into closed session will not cut it with the PAC.  There must be more detail in the motion. For example, if the public body wants to go into closed session to talk about a disciplinary issue with a specific employee, the motion should reference "discipline or performance of a specific employee" rather than simply "personnel."  

Post Authored by Julie Tappendorf


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