3. Administrative Adjudicatory Deliberations
The Law
Deliberations by a public body in connection with an administrative adjudicatory proceeding. For purposes of this paragraph, an “administrative adjudicatory proceeding” means a proceeding brought by or against a person before a public body in which individual legal rights, duties or privileges are required by law to be determined by the public body after an opportunity for a trial- type hearing. Except as otherwise provided in this section, the actual administrative adjudicatory proceeding at which evidence is offered or rebutted and any final action taken as a result of the proceeding shall occur in an open meeting.
Commentary
This paragraph permits a public body that conducts “administrative adjudicatory proceedings” to close the proceedings to deliberate. Examples of administrative adjudicatory proceedings contemplated by the exception include factual hearings conducted before issuing licenses and permits, licensee and employee disciplinary hearings, hearings like those conducted by the Human Rights Commission to consider alleged civil rights violations, and hearings held to consider wage and other labor related claims. Like a trial or other court hearing, these proceedings involve the presentation of facts and evidence in a public hearing and an impartial decision maker that must weigh the evidence presented and apply the applicable law, regulation or rule to the particular situation before being heard. Deliberations covered by the exception include discussions among the members of the public body at the conclusion of an administrative adjudicatory hearing during which the evidence, facts and law presented at the hearing are considered to reach a final decision. Deliberations also include discussions during the hearing concerning how to rule on motions and objections made by the parties.
The exception extends to all administrative adjudicatory proceedings the same right to deliberate in private that the Act specifically provides for licensing and personnel hearings. It also parallels the same privilege judges and courts have to weigh and consider in private evidence presented during a trial before reaching their final decision. Permitting agencies to deliberate in private under the specified circumstances encourages the thorough and candid consideration of evidence presented through witnesses or otherwise. As with the licensing and personnel exceptions, the actual proceeding where evidence is offered or rebutted and any final action or decision resulting from the proceeding must occur in a public meeting.
Example 46:
The Human Rights Commission receives a complaint alleging that a hotel refused service to the complainant in violation of her civil rights. The Commission schedules a public hearing during which evidence is presented and witnesses testify on both sides of the issue. At the conclusion of the hearing, the Commission may close the hearing to consider the evidence and the credibility of the witnesses to determine what the facts are and how to apply the Act. The Commission must vote on and announce its final decision in a public meeting. This may occur either on the same day as the hearing or during a subsequent public meeting.
Commentary
The exception applies only where a public body is required by law to determine individual legal rights, duties or privileges after providing the opportunity for a trial-type hearing. Public bodies may not misuse the exception as a means of avoiding the open meeting requirements. In other words, unless the Act mandates that a matter be determined after an administrative adjudicatory proceeding, a public body cannot hold a “hearing” on an issue and then close its meeting to “deliberate” if the issue is one that otherwise would have to be discussed in public and is not one for which the Act mandates a trial- type process.
Example 47:
One of the items discussed at a village council meeting is a contract for garbage collection. One councilor suggests that the village hold a hearing to hear each bidder’s proposal, and then go into executive session to “deliberate” on which proposal to accept. The councilor’s suggestion is correctly voted down after the council’s attorney advises that the selection of a contractor is governed by the Procurement Code, which does not authorize an administrative adjudicatory proceeding prior to awarding a contract.