Discussion of Elected Officials in Closed Session Violated OMA

Discussion of Elected Officials in Closed Session Violated OMA

  Wednesday, October 31, 2018    Julie Tappendorf

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In its 15th binding opinion for 2018, the PAC found a public body in violation of the Open Meetings Act when it discussed the performance and salaries of two elected officials in closed session. PAC Op. 18-015. 

The county auditor filed a complaint with the PAC alleging that the finance committee of a county board improperly went into closed session to discuss the salaries of two elected officials. Her complaint raised allegations about three separate meetings. The PAC found that her allegations with respect to a May 2, 2018 meeting were outside its jurisdiction because the complaint was not filed within 60 days of that meeting. Allegations relating to a meeting scheduled for August 1, 2018, were also outside of the PAC's jurisdiction because that meeting had not yet taken place when the complaint was filed. The PAC did, however, review the allegations relating to a June 6, 2018 meeting of the finance committee.

The PAC reviewed the minutes of the June 6th meeting as well as the verbatim recording of the closed session. According to the opinion, the committee had cited 2(c)(1) of the OMA as the basis for going into closed session. That exception authorizes the discussion of, among other things, the performance and salaries of specific employees of a public body. The PAC found that the cited exemption did not apply in this case because the committee discussed the duties and salaries for two elected officials, the county coroner and the county auditor, and not employees. 

The OMA defines "employee" as "a person employed by a public body whose relationship with the public body constitutes an employer-employee relationship under the usual common law rules, and who is not an independent contractor." The PAC first determined that the county does not have an employer-employee relationship with the county auditor or county coroner because neither the committee nor the county board has the authority to direct and control the manner in which the auditor and coroner perform their duties. Second, the PAC determined that a public officer such as the county auditor or coroner cannot simultaneously be an "employee" of the county. Third, the PAC determined that state statute determines the duties and responsibilities of these elected officials, which statute prevails over any county ordinance. Finally, the PAC stated that the board has no authority to terminate the county auditor or coroner based on performance which would generally be the case were the two employees of the county. As a result, the PAC found that the cited exception 2(c)(1) did not apply.

The PAC also reviewed the exception contained in 2(c)(3) which allows a closed session discussion of public officers. The PAC noted that this exception only applies if the public body has the authority to remove the public officers being discussed, which is not the case with these two elected officials. So, the PAC determined that this exception also did not apply.

In sum, the PAC determined that the county board committee violated the OMA in discussing the performance and salaries of the county auditor and county coroner in closed session.