Executive Session Update

Ross Williamson

From our May 2017 e-newsletter

Last year, the Oregon Government Ethics Commission (OGEC) made changes to its administrative rules that interpret the executive session statutes. Although these rules are now close to one year old, it is time for a little reminder to make sure these rule changes stick in your memory for future use.

The authority to enter into an executive session is limited and the permissible subjects for executive sessions are set out in ORS 192.660(2). For today, we are talking about two particular subjects for executive session related to a governing body overseeing its officers and employees. ORS 192.660(2)(b) allows a governing body to enter into executive session to discuss the discipline or termination of an individual. Similarly, ORS 192.660(2)(i) allows a governing body to enter into an executive session to discuss the performance of a particular individual.

Each of these two executive session authorities come with an important qualification. Before a governing body can go into executive session under either of these provisions, the governing body must first provide notice to the impacted person and offer this person the option of having the governing body’s discussion take place in open session rather than in executive session.

The administrative rules adopted by the OGEC last year clarify how a governing body provides this prior notice to the impacted individual. Changes were made to OAR 199-040-0030 to provide this additional guidance. The new rule provides, in relevant part:

(1) In order to afford to the chief executive officer of any public body, a public officer, employee, staff member or individual agent the opportunity to request an open hearing under ORS 192.660(2)(b) or (i), the public official must receive written notice of the meeting no less than one business day or 24 hours, whichever is greater, in advance of the meeting.

(2) At a minimum, the written notice shall include:

(a) Identification of the governing body before which the matter will be considered;
(b) The time, date and location of the
(c) The purpose for which the governing body proposes to convene the executive session, including the citation to the applicable section of ORS 192.660 and the fact that the governing body will be considering the dismissal or disciplining of, hearing complaints or charges against, or reviewing and evaluating the performance of the public official receiving the notice;
(d) Information on how the public official may make a request for an open hearing.

As this administrative rule makes clear, the governing body is required to provide written notice to the impacted individual. In addition, the notice must be provided at least one business day before the meeting, and the written notice must contain certain information as set out in the rule.

The OGEC is placing more formalities on going into executive session than we have been accustomed to in the past. With these new formalities, it becomes easier to slip up if you do not follow the administrative rule to the letter. Please keep these requirements in mind as you contemplate executive sessions in the future.