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Open Meetings Act

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Licensing

 

The Law

That portion of meetings at which a decision concerning purchases in an amount exceeding two thousand five hundred dollars ($2,500) that can be made only from one source and that portion of meetings at which the contents of competitive sealed proposals solicited pursuant to the Procurement Code are discussed during the contract negotiation process. The actual approval of purchase of the item or final action regarding the selection of a contractor shall be made in an open meeting.

 

Commentary
This paragraph authorizes a public body to discuss two types of purchases in closed session. First, the exception permits a closed meeting to discuss:

  • a purchase;
  • that exceeds $2,500 in amount; and
  • that can only be made from one source.

The final action taken to approve such a purchase must be taken at an open meeting.

Example 53:

The governing board of a municipality is unable to purchase a particular kind of computer equipment compatible with its other equipment but has finally located a party who is willing to lease the equipment to the municipality for six months. The value of the computer equipment if purchased outright is $20,000 and the total rental amount of the lease is $2,000. In determining whether discussion of this lease may occur in closed session, the governing body should consider the following: 

  • Whether the term “purchase” used in the exemption includes leases. Because the legislature did not use a broader term for acquiring property, it might be argued that it did not intend to include pure lease transactions. By contrast, Section 10-15-1(H)(8) of the Act refers to the “purchase, acquisition or disposal” of real property, clearly indicating the legislature’s intent to encompass all means of acquiring real property. Limiting the meaning of purchase also is consistent with the presumptions that all meetings of a public body are open and that the exceptions be construed narrowly. On the other hand, the terms “purchases” and “one source” in the exception indicate that the legislature had the Public Purchases Act (now the Procurement Code) in mind when it drafted the exemption. At that time, the Public Purchases Act broadly defined “purchasing” as “procuring” materials and services. There also is no obvious policy reason for including purchases but not leases within the exemption. Accordingly, it is reasonable to conclude that, when it drafted the exemption, the legislature intended that the term “purchases” be employed broadly to include leases. 
  • The amount of the lease. Regardless of the value of the computer, the amount actually to be expended by the municipality pursuant to the lease is $2,000. 
  • Available sources. Under these facts, there would appear to be only a single 

The governing body could not discuss this lease in closed session because, although the transaction arguably may be a purchase for purposes of the exception and can be made from only one source, the amount to be expended does not exceed $2,500. 

Example 54:
A board of county commissioners is considering the purchase of a particular dump truck for $30,000. While there are comparable trucks made by several manufacturers that would serve the same purpose, the governing body desires one particular model since it is the same brand as the county’s existing dumpsters. However, as long as there are comparable models available from other sources, this may not be considered a purchase from a single source for purposes of the Act and must be discussed in open session. 

Commentary
As with the exception for limited personnel matters, the requirement that the actual approval of the purchase be made in open session may appear to be a mere formality; but again, this requirement makes the particular action taken by the governing body a matter of public record and informs the public about how each member of the body voted.

Example 55:
In closed session, a school board discusses the controversial purchase of a $2,750 painting of a cougar to hang in the auditorium as the symbol of the high school basketball team. The painting is available from only one artist. The closed session is proper, but when the discussion is concluded, the board must reconvene in open session to vote on the proposed purchase. 

Commentary
The second situation where a public body may close a meeting under this paragraph is intended to parallel the similar protection provided under Section 13-1-116 of the Procurement Code. That provision states that the contents of proposals submitted in response to a public agency’s request for proposals “shall not be disclosed so as to be available to competing offerors during the negotiation process.” In addition to enhancing a public body’s ability to get the best deal, this exception also tends to level the playing field for offerors. 

Example 56:
A water district issues a request for proposals for auditing services. It receives six (6) proposals, none of which exactly fit the district’s needs. The district’s governing board may hold a closed session to discuss the offers and decide how to handle negotiations with the individual offerors.

Commentary
Once the negotiating process is finished, there is no longer a need for the exception and the agency’s final action to select a contractor must be taken in an open meeting.