The Ledger

From Staff Reports

COCHRAN, Ga. — Government meetings are generally required to be open to the public in Georgia, but there are circumstances when the doors can legally close.

Those closed portions of public meetings are commonly called executive sessions.

But an executive session is not a separate secret meeting, nor does a governing body have unlimited authority to decide what it wants to discuss privately. Georgia’s Open Meetings Law establishes reasons a meeting may be closed and procedures that must be followed before, during and after an executive session.

When can a meeting be closed?

Georgia law permits executive sessions for certain specific subjects.

Those can include certain discussions involving pending or potential litigation, real estate transactions, personnel matters, confidential tax matters, exempt records, cybersecurity matters and some other circumstances established by law.

Simply describing something as “confidential” or “sensitive” does not automatically make it appropriate for executive session.

What does “personnel” mean?

Personnel is one of the reasons citizens frequently hear when a governing body enters executive session.

But the personnel exception has limits.

Certain discussions involving the appointment, employment, compensation, hiring, disciplinary action, dismissal or periodic evaluation of a public officer or employee may be conducted privately.

Some personnel-related matters, however, cannot be handled behind closed doors under that exception.

For example, general policies concerning employment or hiring practices are not covered by the personnel exception. The law also places restrictions on privately receiving evidence or hearing arguments concerning personnel matters.

And while some personnel discussions may occur privately, official votes on personnel matters covered by the exception must be taken in public.

How does a governing body enter executive session?

Officials cannot simply leave the public meeting and begin talking privately.

The governing body must formally close the open portion of the meeting.

The specific reason for closing the meeting must be stated, and a majority vote of a quorum present is required before the executive session begins.

The public record must document the reason for the executive session, the members present and those who voted to close the meeting.

Can anything be discussed once the doors close?

No.

Discussion during executive session is limited to subjects permitted by Georgia law and identified as the reason for closing the meeting.

The presiding officer is responsible for keeping the discussion within those boundaries.

If an unauthorized subject is raised and discussion of it continues, open-government guidance states that the presiding officer should adjourn the executive session.

What about real estate?

Georgia law allows certain real-estate matters to be considered in executive session.

Those can include negotiations, appraisals, contracts or options involving the purchase, disposal or lease of property.

However, a vote taken privately to acquire, dispose of or lease real estate does not become binding until a subsequent vote is taken during an open meeting. The identity of the property and terms of the transaction also must be disclosed before that public vote.

What happens when executive session ends?

This is an important distinction: executive session is the closed portion of a public meeting.

Ending the executive session does not change the requirements that apply to any remaining open portion of the meeting.

This becomes especially important if the governing body needs to take action following its private discussion. When Georgia law requires a subsequent public vote, the governing body must return to the open meeting before taking that action.

Does the public have a right to return?

Any portion of a meeting required to be open must remain accessible to the public.

That means public access remains important when a governing body comes out of executive session and resumes the open meeting.

The Open Meetings Law requires meetings covered by the law to be open to the public and provides that the public must be afforded access to them.

Are executive-session minutes kept?

Yes.

Executive sessions are closed to the public, but they are not conducted without a record.

Minutes must be kept of the closed session and should identify each issue discussed. Those minutes generally remain confidential rather than being available for routine public inspection.

They are preserved, however, so a court can review them if a legal dispute arises concerning whether an executive session was properly conducted.

Certain information about the executive session remains part of the public record, including the reason for closing the meeting, the members present and the members who voted for closure.

What is the executive-session affidavit?

There is another safeguard built into the process.

At the conclusion of an executive session, the presiding officer is required to execute an affidavit identifying the legal reason for closing the meeting and attesting that the closed portion was limited to subjects allowed by law.

That requirement places responsibility on the presiding officer to ensure an executive session does not become a general private discussion of public business.

What happens if the law isn’t followed?

Open Meetings Law violations can have consequences.

Depending on the circumstances, government actions associated with a violation can potentially be invalidated. Civil penalties, attorney fees and other remedies also may apply, and a knowing and willful violation can carry criminal consequences.

But determining whether a particular meeting violated the law requires examining the specific facts.

A meeting that feels unfriendly to the public is not necessarily an illegal meeting. An executive session is not improper simply because members of the public cannot hear what is being discussed.

The questions are more specific: Was the meeting properly closed? Was there a legally permitted reason? Did the discussion stay within that reason? Was the open portion accessible to the public? And were actions that legally required a public vote actually taken in public?

Those are the kinds of questions Georgia’s Open Meetings Law allows citizens to ask.

Openness doesn’t end at the conference-room door

Executive sessions serve legitimate purposes. Governments sometimes must discuss matters that the law recognizes should temporarily remain confidential.

But executive session is an exception to an otherwise open process.

Knowing the difference between what government officials may discuss privately and what must occur publicly helps citizens understand both their government’s responsibilities and their own rights to observe the public’s business.

Want to learn more?
The Ledger used Georgia’s Open Meetings Act and educational materials from the Georgia Attorney General’s Office/Georgia First Amendment Foundation and the Association County Commissioners of Georgia in preparing this explainer. Readers who would like to review the source materials may contact The Ledger at editor@thecbledger.com for copies or links.