Misconceptions about the Sunshine Act abound, Part 2
The Sunshine Act generally requires agencies to hold meetings open to the public whenever they take official action and conduct deliberations. However, the open meeting requirement is subject to some exceptions. Conferences – training programs or seminars designed solely to inform agency members about their official responsibilities – may be closed to the public. Caucus and ethics committee meetings of the state House and Senate may also be closed to the public. A board of auditors does not have to open its working sessions to the public as long as the board’s official action with respect to the records being audited is taken at an open meeting.
The exception that generates the most litigation and frustrates more reporters and citizens than all other exceptions combined is the executive session exception. The Act defines an executive session as “[a] meeting from which the public is excluded, although the agency may admit those persons necessary to carry out the purpose of the meeting.”
Based on PNA legal hotline calls, the greatest misconception about the executive session is that it can be invoked whenever agency members believe it would be in their best interest to resolve a matter in private. After watching some agencies at work, one could be forgiven for assuming that executive sessions are the meeting norm and open meetings are, in fact, the exception to that norm.
Fortunately, the Sunshine Act clearly establishes that the legitimate purposes of an executive session are fairly limited. First and most importantly, official action on matters discussed at an executive session must always take place at an open meeting. In other words, an executive session at which agency members take a vote, establish policy, decide agency business or make official recommendations is an unlawful meeting. Given the incidence of hotline calls regarding decisions made during executive sessions, it seems that many officials are unaware of this limitation as well as the statutory admonition that an executive session shall not be used “as a subterfuge to defeat the purposes of [the open meeting requirement].”
The other important limitation is that an executive session may be held only for the reasons stated in the Act. The Act does not give agency members the discretion to hold a meeting behind closed doors because they, the members, have some reason of their own for believing a private meeting would be best.