Open Meetings LawN.C.G.S. § 143-318.9 through 143-318.18

As a general principle, official meetings of public bodies must be open to the public. HOWEVER, there are explicit, proscribed circumstances when it is lawful for the Board to exclude the public from its deliberations – closed session meetings.

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Open Meetings LawN.C.G.S. § 143-318.9 through 143-318.18

The following exclusive list provides the ONLY circumstances when it is lawful to go into closed session and close the Board’s meeting to the public:

1) To protect privileged or confidential information or to protect information that is not considered a public record;

2) To prevent the premature disclosure of an honorary degree, scholarship, prize or similar award;

3) To consult with the Board’s attorney to preserve attorney-client privilege;

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Open Meetings LawN.C.G.S. § 143-318.9 through 143-318.18

Closed session reasons continued:

4)To discuss economic development matters;5)To discuss the Board’s negotiation strategies

related to real property contracts and employment contracts;

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Open Meetings LawN.C.G.S. § 143-318.9 through 143-318.18

Closed session reasons continued:

6) To discuss qualifications, competence, performance, character, fitness, appointment conditions, or initial employment conditions of a current or prospective public officer or employee;

Final action by public body with final authority for appointments, discharges, and removals MUST be taken in open session.

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Open Meetings LawN.C.G.S. § 143-318.9 through 143-318.18

Closed session reasons continued:7) To hear or investigate a complaint, charge, or grievance by or against an individual public officer or employee; 8) To plan, conduct, or hear reports about alleged criminal

misconduct investigations;9) To form plans by a local board of education relating to

emergency response to incidents of school violence;10)To discuss public safety actions and obtain briefings

relating to existing or potential terrorist activity. 5

Open Meetings LawN.C.G.S. § 143-318.9 through 143-318.18

Closed session reasons continued:Items 1 through 10 listed above are the exclusive list of reasons for which the local board has the authority to exclude members of the public from its deliberations or actions.

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Open Meetings LawN.C.G.S. § 143-318.9 through 143-318.18

Important points to avoid unwanted scrutiny regarding closed sessions:

1) Simply having the board’s attorney present at the meeting does not qualify the discussion for closed session. The board has to discuss attorney-client privileged information to close the meeting.

2) General policy matters may not be discussed in closed session.

3) Approval of or consideration of settlement terms for community colleges in closed session must be reported to the Board and entered into the minutes as soon as possible within a reasonable time after the settlement is concluded.

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Open Meetings LawN.C.G.S. § 143-318.9 through 143-318.18

Important points to avoid unwanted scrutiny regarding closed sessions cont’d:

4) Regarding economic development initiatives, board action to approve signing a contract, to approve committing to a contract, or to approve authorization of expenditures must take place in open session.

5) General personnel issues cannot be discussed in closed session. The personnel discussion has to be about an individual employee or public officer to be discussed in closed session.

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Open Meetings LawN.C.G.S. § 143-318.9 through 143-318.18

Important points to avoid unwanted scrutiny regarding closed sessions cont’d:

6) The Board is explicitly prohibited from discussing the qualifications, competence, performance, character, fitness, appointment, or removal of a member of its own Board or of another public body in closed session. These issues MUST be discussed in open session.

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Open Meetings LawN.C.G.S. § 143-318.9 through 143-318.18

Important points to avoid unwanted scrutiny regarding closed sessions cont’d:

7) The Board is explicitly prohibited from considering or filling a vacancy on the Board in closed session. The Board must consider or fill the Board vacancy in open session.

8) The public body having the final authority to appoint, discharge, or remove shall take final action to appoint, discharge, or remove in open session.

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Open Meetings LawN.C.G.S. § 143-318.9 through 143-318.18

Calling a closed session:It is imperative for local boards to use the appropriate procedure to close an open meeting. The General Assembly has mandated that all of the following steps be taken when calling a closed session:

1) Make and adopt a motion to go into closed session during the open meeting.

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Open Meetings LawN.C.G.S. § 143-318.9 through 143-318.18

Calling a closed session cont’d:2) The motion to go into closed session must cite

one of the permissible reasons on the exclusive list of appropriate closed session topics. The failure to cite the appropriate permissible reason for going into closed session within the motion renders the ability of the Board to maintain the confidentiality of the closed session vulnerable.

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Open Meetings LawN.C.G.S. § 143-318.9 through 143-318.18

Calling a closed session cont’d:3) If the purpose of the closed session is to discuss

privileged or confidential information, the General Assembly mandates that the motion to close the meeting cites the l law that renders the information confidential or privileged.

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Open Meetings LawN.C.G.S. § 143-318.9 through 143-318.18

Calling a closed session cont’d:For example, if the Board wants to go into closed

session to discuss terminating a college employee, the motion to go into closed session would need to

1) Cite the statute allowing them to discuss confidential information in closed session (G.S. 143-318.11(a)(1)) AND

2) Cite the statute that renders discussion of employee terminations confidential (G.S. 115D-27)

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Open Meetings LawN.C.G.S. § 143-318.9 through 143-318.18

Calling a closed session cont’d:

Sample motion for specific personnel discussion.

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Open Meetings LawN.C.G.S. § 143-318.9 through 143-318.18

Calling a closed session cont’d:Examples of improper ways to go into closed

session:“I move to go into closed session.”“I move to go into closed session to talk about

personnel issues.”“I move to go into closed session to discuss

confidential personnel information.”

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Open Meetings LawN.C.G.S. § 143-318.9 through 143-318.18

Calling a closed session cont’d:Be sure that your closed session discussion

corresponds to your closed session motion so that your closed session motion and your closed session minutes MATCH!

Motion + Minutes = Match

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Open Meetings LawN.C.G.S. § 143-318.9 through 143-318.18

Calling a closed session cont’d:Each closed session topic requires a corresponding motion.

While in closed session, board members cannot bring up other closed session topics if that topic was not included in the motion to go into closed session. The board would need to go back into open session and approve a closed session motion to cover the additional closed session topic.

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Open Meetings LawN.C.G.S. § 143-318.9 through 143-318.18

Avoiding Board Member Liability

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Open Meetings LawN.C.G.S. § 143-318.9 through 143-318.18

Complying with the advice of counsel could protect Board members from personal liability. If any person brings an action against the Board for an open meetings violation, any Board member who knowingly or intentionally violates the Open Meetings Law may be held personally liable for any fees, including attorney’s fees, that are assessed against the losing party, UNLESS the public body or individual Board member has followed the advice of an attorney.

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Open Meetings LawN.C.G.S. § 143-318.9 through 143-318.18

ConclusionReinforcing that it is the public policy of North

Carolina to conduct the people’s business openly will help keep your college’s Board of Trustees from negative scrutiny. If you have a question related to the Open Meetings Law, it is prudent to seek and follow the advice of an attorney.

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