Open Meetings Law and Closed Session Reminder

As new school board members and other municipal officers are taking their oaths, it is a good time for a reminder about the Open Meetings Law and closed sessions.  This Legal Update will review some basic, but important, information about governmental body meetings and closed sessions.

Every meeting of a governmental body must initially be convened in open session.  All business of any kind, formal or informal, must be initiated, discussed, and acted upon in open session unless one of the exemptions in the Open Meetings Law applies.  The Law was created and has been interpreted so as to provide the public with the most complete information possible regarding the affairs of government.  As a result, closed session exemptions are strictly construed.  Indeed, the policy of the Open Meetings Law dictates that the closed session exemptions be invoked sparingly and only where necessary to protect the public interest.  If there is any doubt as to whether a closed session is permitted under a given exemption, the governmental body should hold the meeting in open session.

Notice.  In accordance with Wis. Stat. § 19.84(2), if the Board President or his/her designee knows at the time the notice of a meeting is posed that a closed session may need to occur, the notice must include language identifying that the closed session will occur.  Such notice must include the subject matter to be considered in closed session and the statutory basis allowing for the closed session.  The notice “must contain enough information for the public to discern whether the subject matter is authorized for closed session under § 19.85(1).”  The Wisconsin Attorney General has advised that merely identifying and quoting from the applicable statutory exemption is not sufficient, as it does not reasonably identify any particular subject that might be taken up thereunder.  Thus, in order to comply with the Open Meetings Law, the meeting notice must contain the specific nature of the business to be discussed in closed session and the statutory citation for the exemption(s).

Like all other aspects of the meeting notice, the closed session language must be posted at least 24 hours before the meeting occurs, unless “for good cause” such notice is “impossible or impractical.”  If “good cause” exists, the notice should be given as soon as possible and must be given at least 2 hours in advance of the meeting.

Exemptions.  Wis. Stat. § 19.85(1) contains 11 exemptions to the open session requirement, which permit, but do not require, a governmental body to meet and take action, if appropriate, in closed session.  Common closed session exemptions for school boards include:

• Wis. Stat. § 19.85(1)(a): Judicial or Quasi-Judicial Hearings.  This exemption is often used by school boards for pupil expulsion hearings.
• Wis. Stat. § 19.85(1)(b): Considering of Dismissal, Demotion, Discipline, Licensing, and Tenure.  This exemption is often used by school boards for termination/discharge/dismissal hearings involving contracted staff.
• Wis. Stat. § 19.85(1)(c): Considering Employment, Promotion, Compensation, and Performance Evaluations.  This exemption is often used by school boards to discuss employee performance concerns, discipline imposed by the administration, and resignations.  Note: This exemption cannot be used by a school board to discuss general employment policies, which impact a large group of employees.  It can only be used when the school board intends to discuss a particular employee.
• Wis. Stat. § 19.85(1)(f): Considering Financial, Medical, Social, or Personal Information.  This exemption is often used by school boards to discuss employee or student investigations and employee medical leaves.
• Wis. Stat. § 19.85(1)(e): Conducting Public Business with Competitive or Bargaining Implications.  This exemption is often used by school boards to discuss negotiations strategies with vendors, contractors, a certified collective bargaining representative, a seller or buyer of property, and others.  Note: This exemption is restrictive; it only applies when competitive or bargaining reasons leave a governmental body with no option other than to close the meeting.
• Wis. Stat. § 19.85(1)(g): Conferring with Legal Counsel with Respect to Litigation.  This exemption is often used by school boards to discuss pending or threatened litigation with the school district’s legal counsel.

If the subject matter to be discussed does not satisfy one of the above exemptions, the school board may not address it in closed session and instead must address it in open session.

Procedure.  As mentioned above, every meeting of a governmental body must initially be convened in open session.  Before convening in closed session, the governmental body must follow the procedure set forth in Wis. Stat. § 19.85(1) which requires that the governmental body pass a motion, by recorded majority vote, to convene in closed session.  The vote should be taken by roll call, in order to verify that the vote passed and to identify which Board members voted in favor of the motion.

Sometimes a governmental body will wish to reconvene in open session following a closed session portion of the meeting.  Typically, the governmental body will take action to adjourn closed session and return to open session.  However, a governmental body may not commence a meeting, convene in closed session, and subsequently reconvene in open session within 12 hours after completion of a closed session, unless public notice of the subsequent open session is given “at the same time and in the same manner” as the public notice of the prior open session.  The notice need not specify the time the governmental body expects to reconvene in open session if the body plans to reconvene immediately following the closed session, but the notice must advise the public that a subsequent open session will occur.  When a governmental body reconvenes in open session following a closed session, the governmental body a duty to open the door of the meeting room and inform any members of the public present that the session is now open.

Voting.  The Wisconsin Supreme Court has held that a governmental body is authorized to vote in closed session on matters that were the legitimate subject of deliberation in closed session.  The Court reasoned that “voting is an integral part of deliberating and merely formalizes the result reached in the deliberating process.”  However, in a later case, the Court also wrote that a governmental body must vote in open session, unless an exemption in Wis. Stat. § 19.85(1) expressly authorizes voting in closed session.  Given this conflicting information, the Wisconsin Attorney General has advised that governmental bodies should vote in open session, unless the vote is clearly an integral part of deliberations authorized to be conducted in closed session under Wis. Stat. § 19.85(1) and doing so would compromise the need for the closed session.

Presence in Closed Session.  Often, we are asked who may attend a closed session meeting of a governmental body.  In general, the Open Meetings Law leaves the decision to the governmental body to admit into a closed session anyone whose presence the body determines is necessary or helpful for the consideration of the subject matter.

Confidentiality.  By definition, the matters discussed, and in some cases, acted upon, in closed session are confidential.  The nature of the subject matter allows the governmental body to avoid the default rule that all governmental business is conducted in open session.  As a result, school board members and other school district officials participating in a closed session portion of a meeting must avoid discussing or disclosing the matters addressed in closed session to anyone who is not a member of the governmental body or otherwise entitled to access the information.  A disclosure of such information would not violate the Open Meetings Law, but could, depending upon the nature of the information, violate any number of laws, including but not limited to, the state and federal pupil records laws, the Family and Medical Leave Act, or Wisconsin’s Right of Privacy laws.