Board President’s Corner: When Can You Go into Executive Session?

As part of its continued focus to provide resources to school board presidents, the New Jersey School Boards Association will be answering questions through its monthly Board President’s Corner column. Our first question is below. Submit your question and you may see it featured next time.

Question: When is a board permitted to go into executive session, and what is the best way to explain to meeting attendees why it is doing this?

New Jersey’s Open Public Meetings Act, also known as the Sunshine Law, specifies nine specific areas that can be discussed in “executive” or closed-door sessions.

It is essential for a board to consult its board attorney, who can give the board guidance on whether or not it is allowed to go into executive session under the Open Public Meetings Act.

If it is known at the time that the meeting agenda is prepared that the board will be going into executive session, it is a best practice for the agenda to delineate:

• When the board will be going into closed session (i.e., where in the order of business).
• Which of the nine exceptions to OPMA justifies going into executive session.
• For how long the executive session is anticipated to last.

The board should make its best effort to abide by the time estimate, as it can be problematic to indicate it is going into executive session for a half hour only to return 90 minutes later.

When going into executive session, the best approach from the dais is for the board president to ask for a motion to go into executive session “for reasons of X,” which, as mentioned above, must be an exception under the OPMA, and for about how long the board will be in closed session. The motion should also state whether action will be taken by the board after returning to public session.

As a practical matter, consider that once the motion passes, any persons at the meeting who are not part of executive session will need to be separated from the board. If there is a large number of attendees at the public meeting, board members should consider moving themselves to another room, rather than asking the public to step into another space. Make sure there is seating for members of the public who would like to remain at the meeting while the board is sequestered.

According to the Open Public Meetings Act, a public body may exclude the public only from that portion of a meeting at which the public body discusses any:

(1) matter which, by express provision of federal law, State statute, or rule of court shall be rendered confidential or excluded from the provisions of subsection a. of this section, (which you can find at N.J.S.A. 10:4-12).

(2) matter in which the release of information would impair a right to receive funds from the Government of the United States.

(3) material the disclosure of which constitutes an unwarranted invasion of individual privacy such as any records, data, reports, recommendations, or other personal material of any educational, training, social service, medical, health, custodial, child protection, rehabilitation, legal defense, welfare, housing, relocation, insurance, and similar program or institution operated by a public body pertaining to any specific individual admitted to or served by an institution or program, including but not limited to, information relative to the individual’s personal and family circumstances, and any material pertaining to admission, discharge, treatment, progress, or condition of any individual, unless the individual concerned (or, in the case of a minor or an incapacitated individual, the individual’s guardian) shall request in writing that the material be disclosed publicly.

(4) collective bargaining agreement, or the terms and conditions which are proposed for inclusion in any collective bargaining agreement, including the negotiation of the terms and conditions thereof with employees or representatives of employees of the public body.

(5) matter involving the purchase, lease, or acquisition of real property with public funds, the setting of banking rates, or investment of public funds, if it could adversely affect the public interest if discussion of the matters were disclosed.

(6) tactics and techniques utilized in protecting the safety and property of the public, provided that their disclosure could impair that protection, or investigations of violations or possible violations of the law.

(7) pending or anticipated litigation or contract negotiation other than in subsection b. (4) herein in which the public body is, or may become, a party, or matters falling within the attorney-client privilege, to the extent that confidentiality is required in order for the attorney to exercise his ethical duties as a lawyer.

(8) matter involving the employment, appointment, termination of employment, terms and conditions of employment, evaluation of the performance of, promotion, or disciplining of any specific prospective public officer or employee or current public officer or employee employed or appointed by the public body, unless all the individual employees or appointees whose rights could be adversely affected request in writing that the matter or matters be discussed at a public meeting.

(9) deliberations of a public body occurring after a public hearing that may result in the imposition of a specific civil penalty upon the responding party or the suspension or loss of a license or permit belonging to the responding party as a result of an act or omission for which the responding party bears responsibility.

Votes cannot occur in executive sessions. One exception to the rule requires boards to vote to certify tenure charges in an executive session.

Whatever is discussed in an executive session cannot be discussed with anyone, including conflicted board members.

NJSA 4:10-16 and 17 speak to the ramifications of not complying with the law, which you can review here.

The fact that a report or a contemplated action may be considered controversial does not justify closing a discussion. Executive sessions must be reopened to the public and the public must be notified that the meeting has been reopened.

Sometimes, citizens will want to know why a school board took a vote regarding a particular staff member (e.g., not re-hiring a teacher or principal). However, school board members are not allowed to publicly discuss evaluative aspects of the staff member’s employment, unless the employee authorizes it.

As a best practice, a board should include an explanation of what exactly “executive session” is somewhere that the public can access, such as on the district website or in a brochure or handout that is available to meeting attendees.

As noted, it’s incumbent on the board president to clearly convey to the public why the board is going into executive session. Clearly stating the exception under the Open Public Meetings Act will go a long way toward easing any concerns that the public may have about why the board is meeting behind closed doors. Keep in mind that clearly stating the exception is only the first step, a board president must also ensure that closed session resolutions should “contain as much information as is consistent with full public knowledge without doing any harm to the public interest.”

It’s also imperative to stay focused on whatever prompted the board to go into executive session in the first place. Sometimes, a board has gotten into trouble by straying from the designated topic and letting conversation wander into areas that the public should have been allowed to hear.

Your school board attorney should review all of the board’s language for going into closed session as well as the reasons for which the board is going into closed session.