Executive Sessions

When can government close its doors? The rules, limits, and frequent abuses of closed meetings under Georgia's Open Meetings Act.

Overview: What Is an Executive Session?

The topic of closed meetings has resulted in ongoing contention between elected officials and advocates of open government for years. Some officials argue that executive sessions are necessary in certain cases, while others — and the Transparency Project of Georgia — maintain that the information discussed behind closed doors remains the public's business.

"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 at an open meetings seminar hosted by the Georgia Press Association.

The core question is not whether executive sessions exist — Georgia law explicitly permits them for specific purposes — but whether government bodies are using them appropriately, or abusing the privilege to shield legitimate public business from the taxpayers who fund it.

Topics Permitted in Executive Session

Georgia's Open Meetings Act limits executive sessions to a narrow set of topics. The most common permitted subjects are:

  • Personnel matters: Discussions among board members about specific employees, or interviews of candidates for executive positions
  • Pending litigation: Consultations with legal counsel when there is a formal or tangible threat of legal action
  • Real estate: Discussion of the acquisition or disposal of real property

In Clayton County, Board of Education Chairwoman Pam Adamson once 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," she said. "You cannot do it out here in front of an audience."

However, this is simply not true. As attorney David Hudson — an expert on the Open Meetings Act — explained: "A public agency, such as the Clayton County Board of Education, is not required to meet in a closed session. 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."

Personnel Matters: Limits and Misuse

Some government entities treat "personnel matters" as an all-inclusive umbrella that justifies excluding the public from any discussion that involves an employee. Attorney Ritter has been explicit that this is not the law.

"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. He emphasized that meetings with employees in executive session are not legal.

The proper sequence for handling a personnel complaint is equally important. First, the complaint must be received in open session — that is a public proceeding. Information regarding the complaint must also be received in open session. Only after those public steps may the board enter executive session to deliberate. Receiving evidence in a closed meeting is illegal under Georgia law.

"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."

When a personnel issue discussed in executive session is officially closed or resolved, the personnel records or findings become public. The shield of privacy in executive session does not persist after the matter is concluded.

Litigation and Legal Matters

Government bodies are also permitted to enter executive session to discuss settlements of lawsuits or claims and to consult with their attorney about pending litigation. However, even here, strict guidelines apply.

Board members are only permitted to meet privately as a quorum with their attorney present to discuss pending litigation when there is a formal intent to sue, or an ante litem notice on file. "You have to have a tangible threat of litigation," Ritter said. If no such notice has been received, there is no basis for a closed meeting — "No exceptions."

The elected body cannot enter executive session merely because it thinks it might eventually get sued. The ante litem notice itself is an open public record. If no notice has been received, there is no legitimate basis to exclude the public.

Real Estate Acquisitions

A government agency may discuss the acquisition or disposal of real estate in executive session. The rationale here is practical: public disclosure of the agency's interest in a specific property before negotiations are complete could artificially inflate prices and harm taxpayers.

However, as with personnel and litigation matters, the decision itself — the actual vote to acquire or sell property — must occur in an open public meeting. All votes on matters discussed in executive session must be taken publicly and recorded in the minutes.

Returning to Open Session

When board members return from an executive session, they are not permitted to simply announce a vote without context. Ritter has been clear: officials are required to state what they are voting on in sufficient detail for the public to identify the topic.

It is not enough to say "we will vote on the issue discussed in executive session." The board must give enough information for the public to understand what matter is being decided — even if the substance of the closed deliberation is not disclosed.

Enforcement and Reporting Violations

If members of the public are able to produce evidence that any government agency has violated the Open Meetings Act through improper use of executive session, they are encouraged to contact the Georgia Attorney General's office. Senior Assistant Attorney General Stefan Ritter handles such matters at (404) 656-7298.

The consequences of proven violations can be significant. In 2014, the City of Cumming was ordered to pay more than $12,000 — the maximum allowable penalty — in fines for violating the Open Meetings Act. Enforcement is real, and the law has teeth.

Citizens do not need to accept closed government as the norm. The tools to push back are built into Georgia law, and organizations like the Transparency Project of Georgia and the Georgia First Amendment Foundation exist to help you use them.

Disclaimer: The Transparency Project of Georgia does not provide legal counsel. The opinions expressed on this site do not constitute legal advice and should not be used as a legal argument or defense. Consult a licensed attorney for individual legal guidance.

Frequently Asked Questions About Executive Sessions

Can a Georgia government body be required to meet in executive session?

No. Under O.C.G.A. § 50-14-3(b), executive sessions are permitted but never required. The statute says such sessions "shall be permitted for" specific topics — the word "permitted" is key. A board that claims it must meet in closed session for personnel matters is incorrect under Georgia law.

In fact, there is no legal bar to discussing any permitted topic in open session. A government body may choose to discuss personnel, litigation, or real estate in public if it wishes to do so.

How must a government body enter an executive session?

A government body can only enter executive session by a majority vote of its members during a public meeting. The vote itself must be taken in open session and recorded in the minutes. If a quorum cannot agree to enter executive session, the meeting must remain open.

This procedural requirement ensures that the public is on notice that a closed session is occurring and can hold officials accountable for the decision to exclude them.

What are the limits on discussing personnel matters in executive session?

Under Georgia law, personnel matters in executive session are limited to two specific activities: discussions among board or commission members about a specific personnel issue, and interviews of candidates for the position of executive head of the agency.

Government bodies cannot receive evidence, hear complaints from third parties, or conduct investigations in closed session. The complaint and any information related to it must be received in open session. Only the deliberation phase may occur behind closed doors.

What happens after an executive session? Must officials report what was discussed?

When the government body returns to open session, it must state what it will vote on and provide enough information to identify the subject of the vote — not the details of the closed discussion, but enough for the public to understand what decision is being made.

Simply saying "we will vote on the personnel matter discussed in executive session" is not sufficient. Officials must identify the topic. Once a personnel issue is closed or resolved, those records also become public.

Is the "3-on-3" strategy of meeting in sub-quorum groups legal?

While the sub-quorum meeting tactic — where fewer than a quorum of members meet privately to discuss public business — does not technically violate the Open Meetings Act, it absolutely violates the spirit of the law. Government attorneys have long counseled officials on this loophole, which allows pre-meeting deliberations to occur outside public view.

The Transparency Project of Georgia considers this practice a violation of the public trust. Citizens have the right to witness not just the vote but the deliberation of their elected officials. Legislation by loophole is still a disservice to the public, regardless of technical legality.

Can citizens report executive session violations and who handles them?

Yes. If you have evidence that a government body has improperly used executive session — including meeting in closed session without a majority vote, discussing topics beyond the permitted scope, or receiving evidence in private — you can contact the Georgia Attorney General's office.

Senior Assistant Attorney General Stefan Ritter handles open meetings issues and can be reached at (404) 656-7298. The Attorney General's office also operates an Open Government Mediation Program designed to resolve disputes between citizens and agencies.