Limited Reasons for Closing Public Meetings
By Amy Polk

There are only a few circumstances in which public meetings can be closed, and they are strictly defined. The Open Meetings Act allows these few exceptions by law to protect the interests of the public. The reason for closing the meeting must be stated before a board goes into closed session. All decisions by the public body, however, must be made in open session. Minutes must be taken on these meetings and kept for one year and one day.

Attorney John Gillooly outlined some of the instances where a meeting can be closed to the public at a presentation on the Open Meetings Act in St. Ignace February 27.

A two-thirds majority of the board must can elect to move into a closed session for the following reasons:

• Certain real estate transactions can be discussed in closed session. The closed session is intended to prevent revealing the municipality's offer, making it vulnerable to competitive bidding. Mr. Gillooly explained that revealing property and prices may ruin the board's strategy of getting the best offer or price it can for a property, which ultimately is a benefit to taxpayers.

When entering a closed session to discuss buying or selling property, Mr. Gillooly discouraged revealing property identification numbers or identifying the property the public is buying.

• If a candidate for a government job or appointment requests their application remain confidential, the board can close the meeting to review the contents of the application. Other portions of the hiring process, such as interviewing the applicant or acting on hiring the applicant, must be in an open meeting.

• According to Mr. Gillooly, boards can enter executive session to consult with the board's attorney, but only when discussing trial or settlement strategy for specific pending litigation, and only when an open meeting would have a detrimental effect on the litigating or settlement position of the public body.

Only written legal opinions can be discussed in closed session, but verbal legal advice should be given in open session.

"The attorney has got to give his or her opinion in public," Mr. Gillooly said.

Generally, he said, the only time a board should meet in closed session with an attorney is when there is pending litigation, he said.

"Concerning litigation, you're in closed session," he said. "If it's not, you can discuss a legal opinion in open session, and that should be encouraged. Your municipal or public entity attorney can stand up before the planning commission and say [for example] 'I've given you a legal opinion. My legal opinion is that this variance permit should not be granted because it would be in conflict with our master plan.' They can do that. They should not generally go into closed session to say that."

Closed sessions are allowed without a two-thirds majority vote for the following reasons:

• Boards can go into closed session for strategy and negotiation sessions connected with the negotiation of a collective bargaining agreement with employees. Either negotiating party must request the closed hearing.

Boards can also close the meeting to plan strategy for future contract negotiation and collective bargaining.

Mr. Gillooly recommended limiting topics of the closed session to things like who will represent the board and whether fringe benefits will be the main topic of negotiations.

"They have the right to negotiate as hard and as tough as they want, just as the other side does, as well," Mr. Gillooly said. "Strategy is very important."

Collective bargaining, he said, is "negotiations under which either party may be bound by a union contract."

Non-union employees cannot negotiate their contract in closed session.

This is also the opinion of Mackinac County Prosecutor Fred Feleppa, in ruling on a complaint brought by The St. Ignace News against the city in for an illegal meeting the city council held in August.

• The board can consider the dismissal, suspension, or discipline of a public officer, employee, agent, or staff member (union or non-union) in closed session when the subject of the action requests the hearing be closed.

Complaints about a public official or employee can also be heard in closed session by request of the subject.

Public bodies must fire employees in open session.

• A meeting can be closed to consider the dismissal, suspension, or discipline of a student attending a public school, intermediate school district, or institution of higher education.

The student, or student's parent or guardian, must request a closed hearing for it to be closed, otherwise the hearing will be in open session.

If action is taken, it must be in open session, but, according to Mr. Gillooly, the student can no longer be identified in accordance with Public Act 305 of 2004 (PA 305) and the federal Family Educational Rights and Privacy Act (FERPA).