After years of representing and advising various public boards subject to the Open Meetings Law (Article 33C of Chapter 143 of the North Carolina General Statutes), I have repeatedly witnessed a very common mistake – voting on a topic in open session when boards either are not required to do so or are in violation of another law when doing so. Going into closed session to discuss a confidential matter is a common exercise for most public boards subject to the Open Meetings Law. A lot of public boards take the position that if a matter that has to be discussed in closed session requires a vote, the matter must be voted on in open session. The common mantra is “All votes have to be in open session.” To the contrary, there are only two scenarios where a public board subject to the Open Meetings Law is required to vote in open session. Let’s take a look at the specific provisions in the Open Meetings Law that govern closed sessions.
Open Session Voting Not Required
There is an exclusive statutory list of ten reasons a public board can go into closed session. Of the list of ten statutory bases for which a board can go into closed session, only three statutes address voting.
- Economic Development: G.S. 143-318.11(a)(4) provides that “Any action approving the signing of an economic development contract or commitment, or the action authorizing the payment of economic development expenditures, shall be taken in open session.”
- Appointments, Discharge, or Removal: G.S. 143-318.11(a)(6) provides that “Final action making an appointment or discharge or removal by a public body having final authority for the appointment or discharge or removal shall be taken in an open meeting.”
- Settlements: G.S. 143-318.11(a)(3) provides that if a public body approves or considers a settlement in closed session, the terms of the settlement have to be reported to the board and included in the minutes of the board “as soon as possible within a reasonable time after the settlement is concluded.”
These are the only three out of ten statutory bases for closed session that mention the board taking action or approving an action, i.e. voting. Only two of those three statutes, G.S. 143-318.11(a)(4) and G.S. 143-318.11(a)(6), require the public body to take action or vote in open session. No other statutory basis in the exclusive list of ten bases for closed session requires voting on closed session material in open session. As such, if a public board is not voting on an economic development related issue or voting on an appointment, discharge, or removal of a public officer or employee if it’s the final action, then nothing requires the public board to vote on that closed session item in open session.
Contrary to the idea that all votes must take place in open session, one of the statutory bases for closed session explicitly authorizes a public body to approve a settlement in closed session. G.S. 143-318.11(a)(3) provides that if a public body approves a settlement in closed session, the terms of the settlement have to be included in the minutes and reported to the board after the settlement concludes. The public body can only “approve” a settlement by taking a vote, and G.S. 143-318.11(a)(3) allows that vote to take place in closed session. Thus, because G.S. 143-318.11(a)(3) expressly provides for taking action in closed session, it invalidates the idea that “all votes must take place in open session.”
Furthermore, it’s important to note the distinction in G.S. 143-318.11(a)(6) that provides, “Final action making an appointment or discharge or removal by a public body having final authority . . . shall be taken in an open meeting.” This means that actions that are not final and actions that are not taken by the final authority do not have to be decided in open session.
In sum, a review of the language in the statutes governing closed sessions highlights the fact that all votes do not have to take place in open session.
Closed Session Voting May Be Required
There are multiple reasons why some matters should be voted on in closed session. For example, school boards may conduct student disciplinary hearings that are confidential pursuant to FERPA and state statute. These boards vote to impose disciplinary actions. These disciplinary actions are unequivocally confidential pursuant to FERPA. It would be a violation of federal law and be counter to public policy for a board to disclose a disciplinary action for a student by voting on the disciplinary action in open session.
Additionally, as part of attorney-client privileged communications, a board may vote to direct their attorney to take a specific course of action in anticipation of a lawsuit. Having to vote in open session to direct the board attorney would eliminate the fundamental attorney-client privilege.
Before public boards subject to the Open Meetings Law automatically subscribe to the idea that all votes must take place in open session, I encourage you to review the nature of the closed session topic and consult with counsel to ensure you are not violating other laws in an effort to comply with the Open Meetings Law.