by Bob Lackner
You are the chairman for a legislative committee, and the committee’s next hearing starts in 15 minutes. The committee will be discussing a new report that you expect may embarrass employees of a particular state agency. To avoid this type of embarrassment, it would be better if the committee could meet in executive session so the committee can talk about the issue in a “safe space” without the media or any professional malcontents being present. You read the Open Meetings Law when you started chairing the committee, and you’re sure that the fine print of the law includes a list of reasons for which you can close the meeting. Specifically you’re hoping it includes a general catch-all for sensitive matters that would make the state look bad if disclosed. But you also seem to recall that there are specific procedures to follow when going into executive session. You reach for the phone for a quick consult with your legislative staff…
This article aims to provide a basic understanding of the requirements for meeting in executive session under the Colorado Open Meetings Law (OML) and enable legislators and legislative staff to successfully navigate the requirements for executive sessions.
First, it’s important to note that the OML begins with an over-arching statement of policy: “It is declared to be … the policy of this state that the formation of public policy is public business and may not be conducted in secret.” Next, the OML declares that all meetings of “two or more members of any state public body at which any public business is discussed or at which any formal action is taken are declared to be public meetings open to the public at all times.” The General Assembly and its committees are specifically included in the definition of “state public body.”
The OML allows a legislative committee to go into executive session, that is, to conduct a closed session, only to discuss topics that are specified in the statute. Only members of the committee and staff—and in some cases outside counsel—may be present in an executive session. Before the committee can go into executive session, the committee chair must announce to the public—in open session—the “topic for discussion in the executive session,” including specific citation to the OML provision authorizing the committee to meet in executive session, and identify “the particular matter to be discussed in as much detail as possible without compromising the purpose for which the executive session is authorized…”. Going into executive session requires the affirmative vote of 2/3 of the entire membership of the committee after the chair makes the announcement. The committee may hold an executive session only at a regular or special meeting. Presumably this means the committee is not permitted to hold a spontaneous get together to go into executive session.
These are the specific grounds for which the statute authorizes a legislative committee to meet in executive session:
- Discussions regarding the purchase of property for public purposes or the sale of property at competitive bidding if premature disclosure of the information would give an unfair competitive or bargaining advantage to a person whose personal, private interest is adverse to the general interest;
- Conferences with an attorney representing the General Assembly, the legislative committee, or a legislator concerning disputes involving the General Assembly, the committee or the legislator that are the subject of pending or imminent court action, concerning specific claims or grievances, or for purposes of receiving legal advice on specific legal questions;
- Matters required to be kept confidential by federal law or rules, state statutes, or in accordance with any joint legislative rule pertaining to lobbying practices;
- Specialized details of security arrangements or investigations; and
- Determining positions relative to matters that may be subject to negotiations with employees or employee organizations; developing strategy for receiving reports on the progress of such negotiations, and instructing negotiators.
The OML additionally permits a legislative committee that is acting as a search committee to go into executive session to consider certain appointments or employment matters, but establishing job search goals and the time frame for appointing an agency’s chief executive officer must take place at an open meeting.
This list states the only reasons for which a legislative committee may meet in an executive session. (There are other reasons on the list that apply to state public bodies that are not associated with the General Assembly.) If the topic of the discussion is not on the list, the legislative committee cannot hold an executive session to discuss it. There is no general catch-all for a legislative committee to meet in executive session to avoid a public discussion that could make the state, a state agency, or a state employee look bad. And no catch-all for sensitive matters that decision makers simply want to be able to discuss in secret. As stated above, under the OML, the default position is that the discussion of public business should be conducted in the open.
The OML prohibits a legislative committee from adopting a proposed policy, position, resolution, rule, or regulation or otherwise taking formal action at an executive session. If the discussion during executive session leads to an official action, the committee will complete its discussion in executive session, then go back into the open meeting, make a motion, and vote to take the action.
When a legislative committee goes into executive session, the committee staff turns off the official digital recorder and turns off the internet streaming technology. But under the OML, the committee’s discussions in an executive session must be electronically recorded. The electronic recording must reflect the specific citation to the provision of the OML that authorizes the body to meet in an executive session and the actual contents of the discussion during the session. The minutes of a meeting during which an executive session is held must reflect the topic of the discussion of the executive session.
A person who feels that a legislative committee improperly held an executive session may sue for a copy of the record of the executive session under the Colorado Open Records Act (CORA). If this happens, the court will privately review the recording of the executive session. If it finds that the legislative committee discussed matters that are not included in the list of reasons to hold an executive session or took formal action while in the executive session, the court will declare the part of the record that applies to those issues or actions to be open and available for public review.
The public cannot inspect, and the members of the legislative committee are not supposed to disclose, any part of the record of an executive session and the record is not subject to discovery in a trial unless 1) the legislative committee consents; or 2) the legislative committee fails to comply with the OML, resulting in disclosure of the record in accordance with CORA.
Armed with this information, legislators and legislative staff should now be better prepared to appropriately meet in executive session in compliance with the OML.