The open meetings law requires all official meetings of public bodies to be open to the public. G.S. 143-318.10(a). However, government bodies can hold closed-door meetings, known as closed sessions, under certain limited circumstances. This post focuses on several of the lesser-used closed session purposes not previously covered during this series.
Purpose (a)(2): Premature disclosure of awards
Under G.S. 143-318.11(a)(2), public bodies may enter closed session “[t]o prevent the premature disclosure of an honorary degree, scholarship, prize, or similar award.” No cases interpret this provision, but the plain language suggests that public bodies can discuss potential awardees for honorary degrees, scholarships, or other similar prizes and awards. This provision also probably allows public bodies to vote on award recipients, since voting on recipients in open session would result in premature disclosure. This provision likely does not authorize discussing awards generally or debating whether to institute a certain scholarship, honorary degree, or other prize or award. Policy conversations about whether a certain scholarship, degree, or award should exist should occur in open session.
For example, TarHeel Town is considering instituting an award to honor one of their long-time, recently retired councilmembers. The town council must discuss all the specifics surrounding the award in open session, including whether and how to institute the award, application requirements and criteria, and whether the award will be paid and how much. When TarHeel Town wants to discuss potential winners, though, then the town can enter closed session under this purpose.
Purpose (a)(7): Alleged criminal misconduct
It is permissible to enter closed session “[t]o plan, conduct, or hear reports concerning investigations of alleged criminal misconduct” under G.S. 143-318.11(a)(7). Again, there is no case law shedding light on the scope of this provision, and it appears quite broad on its face. Subsection (a)(7) likely authorizes discussions surrounding investigations of alleged criminal misconduct. This provision probably also allows relevant votes, such as authorizing a certain investigation or determining the specifics of how an investigation should proceed.
The investigation must concern alleged criminal behavior. The statute does not specify how this conduct must be alleged or by whom. There does not appear to be any requirement for a formal allegation through a lawsuit or written grievance. The statute also does not specify whom the allegations must concern. Theoretically, the alleged misconduct could involve anyone. In practice, though, the alleged criminal activity likely must pertain to someone that the public body has the authority to investigate. Otherwise, how could a public body “plan, conduct, or hear reports concerning investigations” of the conduct? The scope of this provision remains unclear, but likely the individual subject to the allegations must fall within the investigative authority of the public body.
Another area of ambiguity is this purpose’s relationship to purpose (a)(6). Recall that purpose (a)(6) allows public bodies to consider employees’ and public officials’ performance in closed session. However, it specifically prohibits evaluating one of a body’s own members in closed session. Given that restriction, if a member of a public body is accused of criminal misconduct, purpose (a)(6) does not appear to authorize discussing the member’s conduct in closed session. Conversely, (a)(7) has no such limiting language and probably does authorize discussing a member’s alleged criminal misconduct in closed session, if those discussions pertain to an investigation of the conduct. For that reason, a public body wanting to investigate the alleged criminal misconduct of one of its members likely should use the (a)(7) purpose. To be clear, no court has ruled on the interplay between purposes (a)(6) and (a)(7), so it is difficult to reach any firm conclusion.
Purpose (a)(8): Emergency response plans
In contrast to purpose (a)(7), this provision is rather narrow. G.S. 143-318.11(a)(8) applies only to two groups: i) local boards of education and ii) school improvement teams. (See G.S. 115C-105.27(a) for a definition of “school improvement team”). This purpose allows local boards of education “formulate plans…relating to emergency response to incidents of school violence…” and “…to formulate and adopt the school safety components of school improvement plans.” Under this provision, local boards of education may discuss emergency response plans but probably may not finalize them. In other words, they can reach a tentative consensus on these plans, but to formally establish and institute them, they likely must vote in open session.
In contrast, local boards of education can both discuss and finalize the school safety components of school improvement plans. We know this because the provision allows for formulation and adoption of these school safety components. That “and adopt” language probably permits voting on and finalizing the safety components of a school improvement plan in closed session. As for school improvement teams, they too are permitted to discuss and adopt the safety components of school improvement plans under the same provision.
Purpose (a)(9): Response to terrorist activity
Under G.S. 143-318.11(a)(9), public bodies may enter closed session to “discuss and take action” regarding public safety plans related to actual or potential terrorist activity. This section also allows public bodies to receive briefings from staff, law enforcement, attorneys, or emergency services personnel regarding terrorism response. This provision does not define what constitutes terrorist activity, and neither does Chapter 143. G.S. 14-10.1(b) provides a definition of terrorism, though it is not clear whether this section intended to incorporate that definition. The language “discuss and take action” likely indicates that public bodies can both deliberate and vote to finalize and institute public safety plans related to terrorism all within a closed session.
Purpose (a)(10): Recordings under G.S. 132-1.4A
G.S. 132-1.4A deals with custodial law enforcement agency recordings. (More analysis of that statute here, here, and here). Under G.S. 143-318.11(a)(10), public bodies can view recordings appropriately released pursuant to G.S.132-1.4A in closed session. Note that (a)(10) only contemplates viewing the recordings. It does not authorize discussing or taking action on the recordings. Discussing and/or acting on the recordings’ content might be covered under other closed session purposes such as (a)(1), (a)(3), (a)(6), or (a)(7). If a public body wants to do more than view the recording, it must cite another closed session purpose in addition to (a)(10). For instance, TarHeel Town wants to view a custodial law enforcement agency recording and seek advice from counsel. It must use purpose (a)(10) to view the recording but should also cite (a)(3) to authorize the relevant discussions with its attorney.
Closed Session Purposes Series
This post is the last in a series of blogs analyzing the closed session purposes. Please see below for links to previous posts. I hope his series has been helpful.
