Unofficial Opinion 98-3
Senator District 13
Senator District 11
Representative District 164
Representative District 165
Representative District 166
The Open Meetings Act generally requires agencies to make official meetings open to the public, but portions of such meetings may be closed or conducted in executive sessions under certain specific circumstances if the proper procedures are followed.
You have asked for my opinion about a number of specific questions regarding the Open Meetings and Records laws. While your questions are raised in the context of the operations of a local government, they are important questions, the answers to which apply to all entities covered by the Acts. I will address each of your questions in turn. In summary, however, it is my unofficial opinion that the Open Meetings Act generally requires agencies to make official meetings open to the public, but portions of such meetings may be closed or conducted in “executive” sessions under certain specific circumstances if the proper procedures are followed. Agencies may go into closed “executive” sessions, along with other necessary participants, for discussion and deliberation under the proper circumstances. All votes, though, even on privately discussed matters, must be taken in public. Although these Acts do not require that minutes detailing the substance of the closed sessions be kept, the public must be properly notified prior to a closed meeting.
The Applicable Law
The Georgia Open Meetings Act, found at O.C.G.A. § 50-14-1 et seq., intends to prohibit “closed meetings which engender in the people a distrust of its officials who are clothed with the power to act in their name.” McLarty v. Board of Regents, 231 Ga. 22, 23 (1973). The Act requires that any meeting of a “governing body of an agency or any committee thereof . . . at which official business or policy of the agency is to be discussed or at which official action is to be taken” be made open to the public. Crosland v. Butts County Bd. of Zoning Appeals, 214 Ga. App. 295, 296 (1994). It is to be “broadly construed to effect its purposes of protecting the public and individuals from closed-door meetings.” Kilgore v. R.W. Page Corp., 261 Ga. 410, 411 (1991). The limited exceptions to its requirements are enumerated at O.C.G.A. § 50-14-3. While the mandates of openness must be read broadly, these statutory exceptions must be narrowly construed. Kilgore, 261 Ga. at 411.
You have initially asked:
Is there any limitation on who [may] be invited into executive sessions by [a covered agency]? May [a] county attorney, county administrator, and county clerk attend? May third parties be invited into the executive session if the [agency] feels the need to do so to discuss business at hand?
In response to this question, it is my opinion that the Open Meetings Act does not contain a limitation on the persons who may be invited into an “executive session.” Of course, one’s primary concern in interpreting the meaning of a statute is to determine the intention of the General Assembly. O.C.G.A. § 1-3-1. Using the principle of expressio unius est exclusio alterius (the expression of one thing is the exclusion of another), one can reasonably infer that the General Assembly did not intend to place a specific limitation on who may remain in the room during a closed session. It precisely listed the circumstances under which a meeting can be closed and the procedures that must be followed when a meeting is closed. However, there is no specific statutory limitation on who may attend a closed meeting. Had the legislature intended to limit those who may be present, it could have done so.
However, this does not mean that a covered “agency” has carte blanche in determining who may remain in a closed meeting. Instead, such agencies must determine on a case-by-case basis which people may remain in a closed session, permitting only those persons whose presence is consistent with an applicable exception to remain in the closed meeting. For example, O.C.G.A. § 50-14-3(4) allows meetings to be closed for the purpose of “discussing the future acquisition of real estate.” It clearly would be appropriate for the board members, if they chose, to include in their closed session the current owners of the real estate in question and their attorneys or agents. Also, O.C.G.A. § 50-14-2(1) allows a meeting to be closed so that the government agency may “consult and meet with legal counsel pertaining to pending or potential litigation” and other such matters. Including the agency’s attorneys and other relevant staff members in these closed consultations would also be appropriate.
Next, you have asked:
Does the law require advance publication of executive session meetings, or can the [agency] go into executive session in the middle of a regularly scheduled public meeting if a matter which would be an appropriate subject for an executive session comes to the [agency’s] attention during such regular meeting?
In this regard, it is my opinion that the Open Meetings Act does not require prior public notice that a portion of a properly advertised open meeting will be closed. However, any agency meeting at which official action will be taken which is also to be closed in its entirety must be properly advertised in advance just as an open meeting would. See O.C.G.A. § 50-14-1(d). Official Code of Georgia Annotated § 50-14-4 describes the procedure that must be followed when a meeting or a portion of a meeting is closed to the public for one of the limited reasons listed in O.C.G.A. §§ 50-14-2 and 50-14-3. It provides as follows:
When any meeting of an agency is closed to the public pursuant to any provision of this chapter, the specific reasons for such closure shall be entered upon the official minutes, the meeting shall not be closed to the public except by a majority vote of a quorum present for the meeting, the minutes shall reflect the names of the members present and the names of those voting for closure, and that part of the minutes shall be made available to the public as any other minutes. Where a meeting of an agency is devoted in part to matters within the exceptions set forth in this chapter, any portion of the meeting not subject to any such exception, privilege, or confidentiality shall be open to the public, and the minutes of such portions not subject to any such exception shall be taken, recorded, and open to public inspection as provided in subsection (e) of Code Section 50-14-1.
O.C.G.A. § 50-14-4. See also 1988 Op. Att’y Gen. U88-30. It is apparent that the vote to close the meeting can only be taken in an open meeting which is itself held in accordance with these
statutory provisions. The Georgia Court of Appeals addressed the public’s right to know of the closing of a meeting in Beck v. Crisp County Zoning Bd. of Appeals, 221 Ga. App. 801 (1996). There, an agency of a local government properly advertised a public meeting. On the agenda, however, only certain parts of the meeting were listed as “public” although the entire meeting was subject to the Open Meetings Act. At the end of the listed “public” portions of the meeting, the chairman announced that the public portion of the meeting was adjourned and implied that the public should leave. No announcement was made that the commission would later reconvene in an open session. The agency then heard evidence regarding public matters.
The court recognized that the closing of this meeting, without notification that it would reconvene later, mislead the public by leaving the impression the commission’s business was concluded, when in fact it was not. The court held that “where the agencies do specifically undertake to ‘advise’ the public, they must do so in an even-handed, balanced manner which does not mislead the public, whatever their avowed intentions.” Id. at 803. It should be understood, therefore, that government entities covered by the Open Meetings Act must be quite straightforward with the public when dealing with the public’s right to attend governmental meetings at which official action will be taken. 3.
You have also inquired: In hiring personnel each year, should the discussions concerning the appointment of [a] county attorney, county physician, and county administrator be discussed in an open meeting or can [an agency] go into executive session to discuss and vote on same?
Does the law require that evidence relating to personnel disciplinary proceedings be taken in an open meeting? And does the law require that deliberations concerning the filling of a vacancy in any agency related to our Board be made in an open meeting?
Under the applicable exception, official meetings can only be closed when the agency is “discussing or deliberating upon the appointment, employment, compensation, hiring, disciplinary action or dismissal, or periodic evaluation or rating of a public officer or employee.” O.C.G.A. § 50-14-3(6). It is my opinion, therefore, that a county board can discuss or deliberate on the appointment of a county attorney, county physician, or county administrator in closed session if they desire, but they must vote on the appointment in public. The board must also take evidence in regard to personnel disciplinary proceedings in public. Id.; 1995 Op. Att’y Gen. U95-15. Deliberations to fill an opening in an agency related to the board may be conducted in closed session with the vote being taken in public, but deliberations to fill a vacancy in the board itself would have to be done in public. O.C.G.A. § 50-14-3(6).
In your fourth question, you asked:
Does the law apply in similar fashion to cities and to hospital authorities, particularly when hospital authorities are conducting “Strategic Planning Sessions” pursuant to Georgia law?
The Open Meetings Act by its very terms applies to all government agencies, which are defined to include, among other things, “[e]very county, municipal corporation, school district, or other political subdivision of this state” and “[e]very city, county, regional, or other authority established pursuant to the laws of this state.” O.C.G.A. § 50-14-1(a)(1)(B), (D) (emphasis added). It also applies to public hospital authorities and to private hospital corporations through which public hospital authorities carry out their official responsibilities. Richmond County Hosp. Auth. v. Southeastern Newspapers Corp., 252 Ga. 19 (1984); Northwest Ga. Health Sys. v. Times-Journal, Inc., 218 Ga. App. 336 (1995); 1980 Op. Att’y Gen. U80-6. Hospital authorities, however, may meet in closed session when “discussing the granting, restriction, or revocation of staff privileges or the granting of abortions under state or federal law.” O.C.G.A. § 50-14-3(5).
Finally, you have asked whether “the open records act require[s] that minutes be taken of the proceedings in an executive session?” The Open Records Act imposes no requirements regarding the taking of such minutes. However, this issue is addressed in the Open Meetings statute. In reviewing that statute, my office has previously opined that “O.C.G.A. § 50-14-4 requires only that the official minutes reflect the specific reasons for closure [of the meeting], the names of those present, and their vote of the closure question. The law imposes no other requirements.” The opinion also notes that a limited exception is indicated for minutes dealing with closed meetings when an agency is discussing the future acquisition of real estate. See O.C.G.A. § 50-14-3(4); 1988 Op. Att’y Gen. U88-30, p. 149.
It is, therefore, my unofficial opinion that the Open Meetings Act generally requires agencies to make official meetings open to the public, but portions of such meetings may be closed or conducted in “executive” sessions under certain specific circumstances if the proper procedures are followed. Agencies may go into closed “executive” sessions, along with other necessary participants, for discussion and deliberation under certain circumstances, but all votes, even on privately discussed matters, must be taken in public. Although the Act does not require that minutes detailing the substance of the closed sessions be kept, the public must be properly notified prior to a closed meeting.
CHRISTOPHER A. MCGRAW
Assistant Attorney General
For an extensive discussion of Georgia’s Open Meetings and Open Records Acts, see Mark H. Cohen & Stephanie B. Manis, Georgia’s Open Records and Open Meetings Laws: A Continued March Toward Government in the Sunshine, 40 Mercer L. Rev. 1 (1988).