Transparency Projectof Georgia

Executive Sessions

It is no secret that the topic of closed meetings has resulted in contention between elected officials and advocates of open meetings for years.

Some elected officials tend to debate that executive sessions are necessary in some cases, while others argue the information discussed behind closed doors is still the public’s business.

But when does a privilege become abused?

“Georgia executive session is a little better than what it used to be, but it’s not that much better,” said Senior Assistant Attorney General Stefan Ritter in an open meetings seminar hosted by the Georgia Press Association.

In Clayton County in February, the Board of Education Chairwoman Pam Adamson told citizens that board members were “restricted” and had to discuss personnel issues in executive session.

“State law says you have to discuss personnel issues in executive session,” Adamson said. “You cannot do it out here in front of an audience.”

However, according to Georgia’s open meetings law, that’s simply not true.

“A public agency, such as the Clayton County Board of Education, is not required to meet in a closed session,” said David Hudson, an attorney considered an expert on the Open Meetings Act. “The specific text of the open meetings law at O.C.G.A. 50-14-3(b) states that ‘executive session shall be permitted for …’ It does not say that executive sessions are required or mandatory.”

However, Adamson said she believed discussing topics such as student issues, employee issues or real estate acquisitions in public could have a waterfall effect that would hinder the end result. For instance, discussing student or employee issues publicly could pose privacy issues, and discussing future real estate could raise prices, she suggested.

Hudson went on to explain “an executive session can be convened only by majority vote of the Board or Council members in a public meeting. Thus if there is not a majority vote to meet in a closed session, the meeting must take place in the open.”

On the flip side, nothing discussed behind closed doors is binding until the issue is disclosed and voted upon in public.

Government bodies are allowed to vote to close a meeting to discuss a limited range of topics, the most common of which are pending litigation, personnel issues and real estate acquisitions, but they come with strict guidelines that Ritter said are often overlooked.

For example, he said some government entities treat “personnel matters” as an all-inclusive cloak which results in a board erring on the side of caution instead of on the side of openness.

“Personnel meetings in executive session are limited to two things — discussions among the board, commission, whoever it is, discussions among those members on a specific personnel issue, or to interview candidates for an executive head,” Ritter said, adding that the meetings they have with their employees in executive session are not legal.

He also said government bodies are not entitled to close a meeting to hear evidence on a situation — receiving evidence in a closed meeting is illegal, and is therefore public.

“First they have to receive the complaint — that’s open,” Ritter explained. “Then they have to receive information regarding the complaint — that’s open. — then they can meet in closed session, but they have to vote on it in an open meeting.”

Georgia’s open meetings and open records laws also permit government agencies to enter executive session to discuss the acquisition or disposal of real estate and to discuss settlements of lawsuits or claims against an agency.

But again, the board is subject to strict guidelines.

Board members are only permitted to meet privately as a quorum with their attorney present to discuss pending litigation, but there must be a formal intent to sue, or an ante litem notice, filed before the board can proceed.

“You have to have a tangible threat of litigation,” Ritter said adding if not, they have no business meeting in executive session, and the ante litem notice is an open record.

If they haven’t received a notice, then it’s not a tangible threat he said, “No exceptions.”

The elected body cannot go into executive session just because it thinks it might get sued.

If a government agency has a topic of discussion that meets the criteria, then it is permitted to meet behind closed doors. However, when the board members return, Ritter said they are not permitted to cloak all information from the public.

He said board members are required to state what they’re voting on following executive session, and when taking a vote, the board must give enough information for the public to identify the topic — just not the discussion.

It is not enough for a board to simply say they will vote on the personnel issue that was discussed in executive session.

And when a personnel issue discussed in executive session has officially closed or been resolved, the personnel records or findings becomes public, Ritter said.

If members of the public are able to produce evidence that any government agency violates the law on closed meetings, they are encouraged to call Ritter at the Attorney General’s office at 404-656-7298.

Written by Rachel Shirey. Originally published Henry Daily Herald, Nov. 29, 2013

Frequently Asked Questions

What is an executive session under Georgia law?

An executive session is a closed meeting that a government body may hold to discuss certain limited topics. Under Georgia’s Open Meetings Act (O.C.G.A. 50-14-3), these sessions allow elected officials to meet privately, but only under specific circumstances defined by law.

The most common reasons for executive sessions include discussing pending litigation, personnel matters, and real estate acquisitions. However, it is important to understand that executive sessions are permitted, not required. No government body is obligated to close a meeting, even when the topic would allow them to do so.

Executive sessions must be convened by a majority vote during an open public meeting. The public must be informed that the body is entering a closed session, and the reason must be stated. Any decisions made during executive session are not binding until voted upon in a subsequent open meeting.

Citizens should be aware that executive sessions are subject to strict procedural requirements. If government officials fail to follow these rules, they may be in violation of the Open Meetings Act, which carries penalties and can be reported to the Attorney General’s office.

Can personnel issues be discussed in open meetings in Georgia?

Yes, personnel issues can absolutely be discussed in open meetings in Georgia. A common misconception among some elected officials is that personnel matters must be handled in executive session. However, the Open Meetings Act states that executive sessions “shall be permitted” for personnel discussions — it does not require them.

The distinction is critical: permission is not a mandate. A government body can choose to discuss personnel matters openly if its members decide to do so. The law gives them the option to go into closed session, but transparency advocates argue that officials should err on the side of openness whenever possible.

Furthermore, personnel discussions in executive session are limited to two specific situations: discussions among board members about a specific personnel issue, or interviews of candidates for an executive head position. Other employee meetings behind closed doors may not be legally authorized.

Once a personnel matter has been resolved, the records and findings become public. Citizens have the right to access this information through an open records request, ensuring that government accountability is maintained even after private deliberations.

What topics can legally be discussed in executive session in Georgia?

Georgia law permits executive sessions for a limited range of topics. The three most common are pending litigation, personnel matters, and real estate transactions. Each of these comes with strict guidelines that government bodies must follow to remain in compliance with the Open Meetings Act.

For litigation discussions, board members may meet privately as a quorum with their attorney present, but only when there is a tangible threat of a lawsuit. This means a formal intent to sue or an ante litem notice must have been filed. Government bodies cannot enter executive session simply because they fear they might be sued in the future.

Personnel discussions in executive session are narrowly defined. They are limited to board-level conversations about specific personnel issues or interviews for executive positions. Broader employee meetings conducted behind closed doors do not meet the legal standard for executive session.

Real estate discussions are permitted when a government body is considering the acquisition or disposal of property. The rationale is that public discussion could affect market prices. However, as with all executive session topics, any final decisions must be made through a public vote in an open meeting.

How can citizens report Open Meetings Act violations in Georgia?

Citizens who believe a government agency has violated Georgia’s Open Meetings Act have several options for reporting the violation. The primary avenue is contacting the Attorney General’s office, which has the authority to investigate and prosecute violations of the state’s transparency laws.

To file a complaint, citizens should gather as much evidence as possible to document the alleged violation. This may include notes from meetings, copies of agendas, recordings (which are expressly permitted under Georgia law), or witness statements. The more documentation provided, the stronger the case for investigation.

The Attorney General’s office has demonstrated its willingness to pursue Open Meetings Act violations, as evidenced by precedent-setting cases that have resulted in significant fines. The state’s transparency laws were overhauled in 2012 to include stronger enforcement mechanisms, including civil penalties.

Citizens can also consult with private attorneys who specialize in First Amendment and open government law. Organizations like the Georgia First Amendment Foundation provide resources and guidance for individuals seeking to hold their local government accountable. The foundation is a federal 501(c)(3) nonprofit dedicated to protecting the public’s right to access government proceedings and records.

What happens after an executive session ends?

After an executive session concludes, the government body must return to open session before taking any official action. Nothing discussed behind closed doors is legally binding until it is disclosed and voted upon in a public meeting. This requirement ensures that the public has an opportunity to know what decisions are being made on their behalf.

When returning to open session, board members are required to state what they are voting on. They must provide enough information for the public to identify the specific topic under consideration. Simply saying “we will vote on the personnel issue discussed in executive session” is not sufficient under the law.

The minutes of the executive session must be kept but may remain sealed for a period of time depending on the subject matter. However, once a matter has been resolved — particularly personnel issues — the records and findings become subject to open records requests and public disclosure.

These post-session requirements serve as a check on the executive session process. They prevent government bodies from using closed meetings as a way to avoid public scrutiny entirely, and they ensure that citizens retain meaningful access to the decision-making process of their elected officials.