‘Executive’ session transparency is good

A former colleague of ours in the newspaper business – David Roberts of the Medicine Bow Post, now a journalism teacher at Missouri Valley College – hated the term “executive session” and never used it in his stories about his local school board, town council or county commission.

The word “executive” seemed far too grand, David argued, for what was going on – or could be going on – behind closed doors at “public” meetings, out of range of the watchful eyes and ears of citizens and the press.

He used the term “secret session” to describe such closed-door gatherings, much to the chagrin of his local elected officials.

We tend to agree with David, and it is also our policy to not use the term “executive session” in our stories but rather to label such sessions by the neutral term “closed sessions.” This policy is fair, we think, and makes the right point about giving too much dignity to closed meetings with the term “executive session” while avoiding the more emotionally-charged term “secret session.”

We have found over the years that most of our local boards and councils understand that they are performing the public’s business and that closed sessions should be very rare. The Lovell School Board, for instance, almost never goes into executive session, and the Lovell Town Council only does so when absolutely necessary to discuss items allowed to be discussed behind closed doors under Wyoming’s Open Meetings Act. Indeed, Town Attorney Sandra Kitchen is a stickler when it comes to the Open Meetings Act, and as members of the press we appreciate that stance, as well as the town’s policy to state the reason for going into a closed session, even though that is not expressly required.

We have much more concern about the policy of the School District No. 1 Board of Trustees to “schedule” an executive session at the start of each school board meeting agenda. Whereas closed-session agenda items are rare for other boards and councils, they apparently come up frequently in District One, so much so that the board must schedule a closed session each and every month.

What this does is make the public suspicious that what the board is actually doing is conducting a closed-door work meeting – hashing out the business of the day out of public earshot prior to the meeting – rather than discussing agenda items in front of the public where they should be discussed.

An important bill is working its way through the Wyoming Legislature this month, supported by the Wyoming Press Association. House Bill 120 is one of three “good government” bills supported by the WPA and Wyoming newspapers, the others being HB 119 and HB 121.

The most important of the trio, we believe, is HB 120, which enhances Wyoming’s Open Meetings Act. The bill, as written, would require a governing body to provide at least a 24-hour notice of a special meeting to members of the governing body and the media, require that audio recordings be made of every executive session and require the presiding officer of the governing body to announce the topic to be considered in the executive session “with as much specificity as can be provided without compromising the reason for the executive session.”

These are all reasonable changes to the law, although the most controversial measure is the requirement to record executive sessions. That portion of the bill was amended out of the bill Tuesday but could reappear later.

Governmental bodies are already required to take minutes of closed sessions (though not read or displayed in public), but some public officials apparently worry about the cost or methods of producing and storing the recordings or that the recordings could lead to confidential information improperly getting out to the public.

At first glance, requiring boards to tape executive sessions might seem burdensome, but in reality a simple recording of the session via a cassette tape player or digital recorder could be made and easily stored. And under the bill, the recordings could only be heard upon a court order and only if the requesting party shows “good cause” that the open meetings act had been violated.

The problem with the current method is that closed sessions are notoriously difficult for the public to monitor to see whether a board is discussing other topics behind closed doors than are allowed under the law. Minutes can say what the board wishes them to say, whereas a recording theoretically doesn’t lie.

Tape recordings would actually protect board or council members from unwarranted actions against them for violating the open meetings act and make public officials more conscious of why they are going into executive session, what they are discussing in the session and whether the conversation is legitimate under the open meetings act.

The reason for the 24-hour notice is simply to make sure that the press and public are notified that a special meeting has been called. Most of our boards and councils in north Big Horn County give plenty of notice already, as far as we know, but this change in the law would simply require them to do so and is a matter of good public policy. Why is proper notice important? Because the public has a right to know when a board or council is conducting the public’s business. As the Wyoming Press Association put it, “A meeting might as well be closed if notice is so short that the public has no meaningful opportunity to attend.”

The most important part of the bill, however, is the requirement to state the topic of the items to be discussed in executive session. This can be done without compromising the confidentiality of the item or items to be discussed. The Lovell Town Council already announces the particular exclusion in the open meetings act under which it is convening an executive session, and other boards should do the same thing.

Too often, we have found over the years, boards paint reasons for closed sessions with a broad brush, merely citing “personnel” or “litigation.” But the exclusions to the open meetings act are very specific. For instance, a board can only go into executive session to “consider the appointment, employment, right to practice of dismissal of a public officer, professional person or employee” or to hear complaints or charges brought against such an employee or public officer, unless a public hearing is requested. They are not to consider broad policies that would affect all employees or set general policy behind closed doors. Discussions on such things as insurance, setting salary levels and writing policy manuals must be heard in the open.

Also too often, boards go into a closed session to discuss “possible litigation,” but any decision a board makes could lead to “possible” litigation. A board or council can only go into closed session to discuss “litigation to which the governing body is a party or proposed litigation to which the governing body may be a party.” Such litigation must be under way or, at the very least, proposed – not simply possible.

All of this is in the best interest of both the governing body and the public. The more information a board or council provides the public about how it conducts the public’s business and, thus, the more transparent the activities of the governing body are, the more the public is likely to understand that boards are not trying to hide anything and are well-meaning public servants.

And if a governing body is attempting to do something shady, the public needs to be aware of it.

Those of us who work closely with boards, councils and commissions generally understand the good intentions of citizen boards, but governing bodies need to do a better job of showing it to the public. House Bill 120 – as originally written – will help them do just that. We urge Rep. Elaine Harvey and Sen. Ray Peterson to support the bill.

–David Peck

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