Open Meeting Law - Executive Session

A motion and vote are essential prerequisites to entering executive session. A majority of the members of a local board (a two-thirds majority of a state board) must agree to enter for the reasons stated. This motion and vote must then be included in the minutes of the meeting, making a permanent record of the session and its reasons.

The legislature has identified a number of reasons to enter executive session. One category, which includes consideration of contracts, civil actions, mediation, arbitration, and labor relations agreements, requires a special review before executive session is justified. The law requires the board to conclude that "premature general public knowledge would clearly place the state, municipality, other public body, or person involved at a substantial disadvantage" before voting on executive session in these cases.

Other reasons to go into executive session are:

The negotiating or securing of real estate purchase options;

The appointment or employment or evaluation of a public officer or employee;

A disciplinary or dismissal action against a public officer or employee; but nothing in this sub-section shall be construed to impair the right of such officer or employee to a public hearing if formal charges are brought;

A clear and imminent peril to the public safety;

Discussion or consideration of records or documents that are not public documents under the access to public records act. However when the board discusses or considers the excepted record or document it may not also discuss the general subject to which the record or document pertains;

The academic records or suspension or discipline of students.

No action may be taken in executive session. Entering a real estate purchase option is the sole exception. In all other instances, appropriate topics may be discussed in executive session but ultimate action must be taken by motion and vote in open session. 1 V.S.A. § 313(a).

Abusing the law of executive session is offensive to the purpose of open meetings. Boards should close their meetings rarely, and then only for legitimate purposes. If the subject is already well known to the community, even if the board is able to find a category to cite, there is no justification for entering executive session.

Going Into Executive Session

A Board may not go into executive session simply because it wishes to proceed privately. Rather, it may only exclude the public if it can point to a specific exemption in the law.
Some boards make the mistake of "warning" meetings as executive or closed sessions. This is an error because the law requires the board to move, in open session, to go into an executive session.
A motion to go into executive session must indicate the nature of the business of the executive session, and this motion must be passed by an affirmative vote of a majority of the members present (2/3 vote for state boards).
In an executive session only the subject matter referenced in the motion to go into this session may be discussed.
Attendance in executive session is limited to members of the public body, and, in the discretion of the public body, its staff, clerical assistants and legal counsel, and persons who are subjects of the discussion or whose information is needed.
Minutes do not have to be taken in an executive session. However, if minutes are taken, these minutes are not public.

Remember

No binding action may be taken in executive session
(except those related to securing real estate options).
Rather, all final votes must be taken in open session
and recorded in the minutes of the meeting. 1 V.S.A. § 313(a).