What Happens in Closed Session, Stays in Closed Session

School officials must remember to comply with one of the Open Meetings Act’s (OMA) often misunderstood provisions: closed sessions. For Thrun Policy Service subscribers, Thrun Policy 2501 provides detailed instructions for OMA and closed session compliance.

Entering Closed Session

The OMA permits a school board to enter closed session for several different purposes through an appropriate motion and vote. A two-thirds roll call vote of those board members elected/appointed and serving (not just those board members in attendance) is required to convene a closed session for the following purposes:

• Section 8(1)(d) – Considering purchase or lease of real property;
• Section 8(1)(e) – Consulting with an attorney on pending litigation;
• Section 8(1)(f) – Reviewing a job application when the candidate requests confidentiality; and
• Section 8(1)(h) – Considering material exempt from disclosure under another statute, which includes reviewing attorney-client privileged materials exempt from disclosure under FOIA Section 13(1)(g).

In contrast, a simple majority vote of board members elected/appointed and serving suffices to go into closed session to consider employee or student discipline, hear complaints or charges brought against an employee, consider an employee’s periodic personnel evaluation (if requested by the affected employee), or for strategy and negotiation sessions connected with a collective bargaining agreement. The reason for calling, as well as the vote to enter closed session, must be stated in the open session motion reflected in the board minutes.

Attendees

A closed session is a meeting of a board quorum that is not open to the public. At the board’s discretion, other people may attend the closed session if their presence is consistent with the closed session’s purpose.

Closed Session Minutes

The board must keep a separate set of minutes for closed session meetings. Michigan’s Attorney General has opined that OMA Section 7 requires that closed session minutes reflect the date, time, and place of the meeting; names of the board members present; and names of the board members absent. Copies of closed session minutes should not be included in board packets or posted on a password-protected website.

Closed session minutes are not available to the public and are disclosed only by court order if required by a civil action challenging the board’s OMA compliance.

Closed session minutes must be approved during open session at the next board meeting. If discussion of proposed closed session minutes is required before board approval, that discussion may occur in a closed session. Closed session minutes must be kept in a special locked file at the school office separate from the open session minutes. Those minutes may be destroyed one year and one day after the regular meeting at which they were approved. School officials should also comply with board policies, bylaws, and record retention and disposal schedules in determining when to destroy closed session minutes.

Complaints, Charges, Discipline, and Evaluations of School Officials

Contrary to popular belief, the OMA does not allow closed sessions for all “personnel reasons.” Rather, OMA Section 8(1)(a) allows a board to meet in closed session to “consider the dismissal, suspension, or disciplining of, or to hear complaints or charges brought against, or to consider a periodic personnel evaluation of, a public officer, employee, staff member, or individual agent, if the named person requests a closed hearing.” (Emphasis added.)

Absent a request for closed session consideration from the school official or employee whose conduct is being reviewed, the matter must be considered in open session, unless exempt from public discussion for other reasons permitted by the OMA. A person who requests a closed session hearing under OMA Section 8(1)(a) may rescind the request at any time, at which point the matter must be considered in an open session.

Student Discipline

OMA Section 8(1)(b) permits a board to convene in closed session to consider the dismissal, suspension, or disciplining of a student if the student or the student’s parent/guardian requests closed session considera­tion. If the student or parent/guardian elects an open session disciplinary hearing, the board must be sure to safeguard other students’ privacy rights.

Open session minutes must comply with applicable confidentiality and privacy laws, including FERPA’s prohibition against nonconsensual redisclosure of personally identifiable student information. Open session minutes should not include personally identifiable information about any student, including the student subject to discipline.

Considering Material Exempt from Disclosure

OMA Section 8(1)(h) permits a board to convene in closed session to consider material exempt from disclosure under another statute, which includes reviewing attorney-client privileged materials. Board members should only discuss the legal advice contained in the attorney-client privileged materials that are the basis for the closed session. The board may allow the attorney to join the closed session, either in person or remotely.

Confidentiality

 Board members must keep confidential any information shared during closed session, including closed session discussions, documents, meeting minutes, and other materials. Disclosure of confidential information may result in civil liability or criminal penalty. If a board member receives a Freedom of Information Act (FOIA) request for any information pertaining to a closed session, the request should be forwarded to the school’s FOIA Coordinator to determine if disclosure is required.

 Note, however, that documents discussed in closed session do not automatically become exempt from disclosure unless provided for in applicable law. The Michigan Court of Appeals has previously ruled that documents brought into closed session without an individualized exemption are disclosable, even though the documents were discussed in closed session. Public bodies are also prohibited from including a document in a closed session record with the intent to shield it from disclosure under FOIA.

Returning to Open Session

The OMA requires that all board decisions be made in open session. For this reason, a board must return to open session before taking any action. A board should not “vote” in a closed session to return to an open session. Instead, we recommend that the board president simply “declare” the time at which the board returns to open session and direct the secretary to record that time in the meeting minutes. If desired, or if required to resolve a dispute as to whether closed session deliberations should cease, the board may vote in an open session to ratify the board president’s declaration.

If you have further questions about convening a closed session, please contact a Thrun attorney.