Executive Sessions: A Review
From our Spring 2022 e-newsletter
Oregon Public Meetings Laws and Executive Sessions
Oregon public meetings laws are designed to ensure public access to governing bodies by requiring that the “decisions of governing bodies [are] arrived at openly.” ORS 192.620. The general rule is that public meetings must be open to the public to attend. Executive sessions provide a limited exception to this rule. An executive session is a “meeting or part of a meeting of a governing body that is closed to certain persons for deliberation on certain matters.” ORS 192.610(2). As its definition indicates, executive sessions may only be held for “certain” reasons. ORS 192.660 lists these reasons, which are the only reasons for which an executive session may be held.
Executive sessions allowed under ORS 192.660 are narrowly interpreted, and each has specific requirements to justify its use. As a dangerous consequence, ORS 192.660 can easily be misunderstood or misapplied, as illustrated below:
1. Employment of Public Officers, Employees, and Agents.
ORS 192.660(2)(a) states, “the governing body . . . may hold an executive session to consider the employment of a public officer, employee, staff member or individual agent . . . .” What it doesn’t tell you is that ORS 192.660(7)(d) limits such executive sessions to where: (1) the vacancy has been advertised; (2) the local government has adopted regular hiring practices; (3) for officers, the public has had an opportunity to comment on the potential hiring; and, (4) for chief executive officers, the governing body has adopted hiring standards, criteria, and policy directives in open meetings with the opportunity for public comment. As a result, an executive session under ORS 192.660(2)(a) may only be held if the local government complied with ORS 192.660(7)(d).
2. Legal Counsel
ORS 192.660(2)(h) allows a governing body to hold an executive session to discuss, with its legal counsel, its “legal rights and duties . . . with regard to current litigation or litigation likely to be filed.” Governing bodies are routinely tempted to stretch this exception to include discussions on any “legal matter.” Prior to scheduling such an executive session, confirm that: (1) the discussion is directly with legal counsel; (2) the discussion concerns your entity’s specific legal rights and duties in a particular situation; and (3) your entity is either named in active litigation or is about to be in a court action. ORS 192.660(2)(h) does not justify general discussion of your entity’s legal rights, risks, or liabilities, with or without your attorney’s presence.
3. “Deliberations” and Final Actions/Decisions
Executive sessions may only be used to receive protected information and “deliberate” on a matter—final decisions and final actions are expressly forbidden. ORS 192.660(6). A governing body may reach a consensus in executive session. For example, a governing body may direct its designated individual on how to negotiate on the next stage of a negotiated real estate deal. However, that transaction cannot be finalized until approved in open session.
Executive sessions can be useful tools to allow governing bodies to discuss confidential matters not appropriate at the time for general public knowledge. However, as illustrated above, executive sessions are authorized for only a limited number of reasons under limited circumstances. Be sure that your board or council is familiar with the allowances and limitations of ORS 192.660 before calling an executive session. It is never a bad idea to check with legal counsel before noticing the meeting to ensure all requirements are properly met.