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Can We Go Into Closed Session?

Joel Gerring

By Joel Gerring, MASB Assistant Legal Counsel

DashBoard, April 26, 2017

As we’re fully into spring and more districts are looking at employee evaluations, requests for bids and the like, the MASB Legal Team is fielding a number of questions regarding when it is proper to go into closed session to discuss certain matters.

Recall that under the Open Meetings Act there are essentially nine legitimate purposes for moving to a closed session, they are:

  1. Complaints—School boards are allowed to move to closed session to discuss formal complaints or charges made against any employee.
  2. Disciplinary Action—Boards can go into closed session to consider the dismissal, suspension, or disciplining of a district employee or school board member, if the individual requests such.
  3. Periodic Personnel Evaluations—Boards are permitted to enter into closed session to consider personnel evaluations of district employees, if the individual requests such. (This is usually used when reviewing a superintendent.)
  4. Student Discipline—School boards are permitted to meet in closed session to consider the expulsion, suspension or disciplining of a student, if requested by the student/parent/guardian.
  5. Collective Bargaining Strategy—When the school board is engaged in active negotiation sessions with its bargaining units they may meet in closed session to discuss strategy and may hold negotiation meetings in closed session. (Normally, the board elects representatives to negotiate in place of the entire board.)
  6. Purchase or Lease Property—Boards can discuss the purchasing/leasing of property in a closed session, up to the point where an option to purchase/lease is obtained. Such closed sessions are usually used so that the board can direct its agents as to their authority and negotiating limits.
  7. Pending Litigation—Boards can meet with their attorneys to discuss pending (not “potential”) litigation. Keep in mind that “attorney/client privilege” falls under the “exempt materials” exemption (below).
  8. Applications for Employment and Appointment to Public Office—A school board can meet in a closed session to review employment/appointment applications, if the individual requests such. This exemption is generally used to evaluate candidates for superintendent. Understand that interviews must be conducted in public and any closed session evaluation process can generally only look at the “specific content” of an individual’s application, i.e., personal matters contained on the application.
  9. Exempt Materials—Boards are allowed to meet in closed session to discuss matters that are exempt from disclosure pursuant to state and federal law. Additional closed sessions on the same issue may also be permissible in certain circumstances.

Three examples regarding this particular exemption are:

  • Attorney/client privilege
  • FERPA
  • Records protected from disclosure under FOIA

Closed session rules can be very fact specific and, since we cannot possibly cover every potential nuance, we encourage members to contact us with specific questions. Likewise, visit our Online Store to purchase a copy of our Open Meetings Guide, an excellent resource for board members and the administrators who assist them.

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