§92-5  Exceptions.  (a)  A board mayhold a meeting closed to the public pursuant to section 92-4 for one or more ofthe following purposes:

(1)  To consider and evaluate personal informationrelating to individuals applying for professional or vocational licenses citedin section 26-9 or both;

(2)  To consider the hire, evaluation, dismissal, ordiscipline of an officer or employee or of charges brought against the officeror employee, where consideration of matters affecting privacy will be involved;provided that if the individual concerned requests an open meeting, an openmeeting shall be held;

(3)  To deliberate concerning the authority of personsdesignated by the board to conduct labor negotiations or to negotiate theacquisition of public property, or during the conduct of such negotiations;

(4)  To consult with the board's attorney on questionsand issues pertaining to the board's powers, duties, privileges, immunities,and liabilities;

(5)  To investigate proceedings regarding criminalmisconduct;

(6)  To consider sensitive matters related to publicsafety or security;

(7)  To consider matters relating to the solicitationand acceptance of private donations; and

(8)  To deliberate or make a decision upon a matterthat requires the consideration of information that must be kept confidentialpursuant to a state or federal law, or a court order.

(b)  In no instance shall the board make adecision or deliberate toward a decision in an executive meeting on matters notdirectly related to the purposes specified in subsection (a).  No chancemeeting, permitted interaction, or electronic communication shall be used tocircumvent the spirit or requirements of this part to make a decision or todeliberate toward a decision upon a matter over which the board hassupervision, control, jurisdiction, or advisory power. [L 1975, c 166, pt of§1; am L 1985, c 278, §3; gen ch 1985; am L 1996, c 267, §3; am L 1998, c 48,§1; am L 1999, c 49, §1]

 

Attorney General Opinions

 

  Subsection (a)(1) is applicable only when a specificindividual is involved.  Att. Gen. Op. 75-11.

  Even if there is no quorum, meeting to discuss officialbusiness may be prohibited unless sunshine law followed.  Att. Gen. Op. 85-27.

  Subsection (a)(2) and §92-9 read together permit board and commissionmembers to disclose some matters deliberated or decided in executive session,but they cannot disclose matters which would be inconsistent with subsection(a)(2), i.e., matters affecting privacy of individuals under consideration forhire, and they must maintain this confidentiality for as long as disclosurewould defeat purpose of convening the executive meeting.  Att. Gen. Op. 94-1.

 

Case Notes

 

  Although §92-2.5(a) does not expressly preclude city counselmembers from engaging in serial one-on-one conversations, when council membersengaged in a series of one-on-one conversations relating to a particular itemof council business, under subsection (b), the spirit of the open meetingrequirement was circumvented and the strong policy of having public bodiesdeliberate and decide its business in view of the public was thwarted andfrustrated. 117 H. 1 (App.), 175 P.3d 111.

  In a suit deciding whether disclosure of county councilexecutive session minutes was required, circuit court properly found that bothchapter 92F and this chapter applied; if the meeting met an exception to theopen meeting requirements put forth in this chapter, such as an exceptionenumerated in this section, the council was not required to disclose theminutes of that meeting to the public; if the meeting did not fall under suchan exception, the council was required to disclose the minutes  pursuant to§92-9 and §92F-12.  120 H. 34 (App.), 200 P.3d 403.

  Where it was clear from the county council executive sessionminutes that the county attorney consulted with the council consistently and atlength throughout the executive session regarding the procedure to follow inconducting an investigation of the county police department and that thecouncil's consultation with the attorney largely concerned the ramifications ofthe sunshine law on the council's investigation -- a legal question, thecouncil was justified in closing the meeting to the public in executivesession.  120 H. 34 (App.), 200 P.3d 403.

  Where the county council executive session conversationconsisted of either direct communication between the council members and thecounty attorney or communication among council members that flowed fromconsultation with the county attorney, the attorney-client portions of theexecutive session were so intertwined with other portions of the executivesession that redacting the privileged portions and disclosing the remainder ofthe minutes was impractical.  120 H. 34 (App.), 200 P.3d 403.