Limited Personnel Matters
The Law
Limited personnel matters; provided that for purposes of the Open Meetings Act, “limited personnel matters” means the discussion of hiring, promotion, demotion, dismissal, assignment or resignation of or the investigation or consideration of complaints or charges against any individual public employee; provided further that this Subsection is not to be construed as to exempt final actions on personnel from being taken at open public meetings; nor does it preclude an aggrieved public employee from demanding a public hearing. Judicial candidates interviewed by any commission shall have the right to demand an open interview.
Commentary
This exception permits a public body to close meetings for the purpose of discussing certain matters concerning individual employees of the public body. Specifically, a public body may close a meeting to discuss the hiring, promotion, demotion, dismissal, assignment or resignation of an individual public employee or the investigation or consideration of complaints or charges against an individual public employee. A public body may also close a meeting for matters that are closely related to those specifically listed in the exception, such as performance appraisals and interviews with job candidates.
The exception does not permit a public policymaking body to retreat into executive session to discuss personnel policies, procedures, budget items, and other issues not concerning the qualifications or performance of specific individuals. This point is emphasized in Section 10-15-1(B) of the Act (discussed above), which specifies that meetings of a public body held to formulate public policy “including the development of personnel policy, rules, regulations or ordinances” are open meetings.
Example 37:
A county commission wishes to discuss whether its budget permits it to hire additional staff. The meeting cannot be closed under the limited personnel matters exception because the commission is not considering an individual employee.
Example 38:
The governing body of a municipality is considering a contract to retain an attorney to represent the municipality on a part-time basis. The attorney is to be an independent contractor and not an employee of the municipality. This paragraph does not authorize closing a meeting of the governing body to select an attorney because the matter to be considered does not concern a public employee.
Example 39:
A local school board, pursuant to statutory authority, meets to appoint a person to fill a vacancy on the board. This paragraph does not authorize closing the meeting to consider that appointment because a board member is not an employee of the school district.
Example 40:
A city council meets to conduct a performance evaluation of the city manager. The evaluation may be conducted in a closed meeting. Although not expressly listed among the actions justifying closure under the limited personnel matters exception, it is closely related to the specified actions, all of which require discussion of an employee’s job performance and qualifications. For example, a performance evaluation likely would provide the basis for any promotion, demotion, dismissal, assignment or resignation.
Example 41:
During its regular meeting, a state commission discusses a contract it has entered into with a person who happens to be employed by a nearby municipality. The state commission cannot close its meeting to discuss the contractor under the limited personnel matters exception. Although the contractor also is a public employee, she is not an employee of the state commission. This exception generally applies only to discussions about individuals employed by the public body invoking the exception.
Commentary
In all cases, a public body must take final action on a personnel matter falling within this exception in open session. This ensures that all final actions taken on personnel matters are announced publicly and the position of each member on the issue is recorded in the official minutes.
Example 42:
A school board meets to consider applicants for the position of superintendent. Discussion of the applicants’ qualifications is conducted in closed session but the final decision or vote of the board with respect to hiring one of the applicants as superintendent must be taken in open session.
Example 43:
An administrative licensing board meets in closed session to review complaints against the executive director. The board takes no action. Therefore, nothing needs to be presented by the board during open session.
Commentary
The exception states that it does not preclude an individual employee from demanding an open hearing. This provision does not confer the right to a hearing, but when an employee has a statutory or constitutional right to a hearing spelled out under another federal or state law, the public body cannot rely on the limited personnel matters exception to close the hearing if the employee wants it to be open. For example, the requirements of due process of law, a constitutional right, often mandate that before a right or privilege may be denied by a public body, the person possessing or seeking to acquire the right must be provided notice of the anticipated action and an opportunity to be heard prior to a final decision. If an employee of a public body is entitled to such a hearing before the public body can take disciplinary or other adverse action against the employee, the employee may demand and obtain an open hearing. Similarly, even if no law provides an employee with the right to a hearing, a public body that elects to give an employee the opportunity to be heard in connection with a personnel matter covered by the exception must conduct the hearing in open session at the employee’s request.
Example 44:
A board of county commissioners meets to discuss a complaint that a county building inspector had attempted to rob a private citizen while on duty. The board is considering disciplinary action but wishes to wait until law enforcement authorities have completed their investigation. The board meets, goes into executive session, and decides to suspend the employee with pay. The board takes action in open session. The employee demands an immediate open hearing, even though the county personnel policy does not provide for a hearing for suspension. If the commission is not required by its policies or the state and federal constitutions to conduct a hearing at this stage, no hearing need be granted.
Example 45:
An employee of AAA City is notified by her supervisor that she was to be terminated for insubordination. Pursuant to the City’s personnel policies, the employee requests a post-disciplinary hearing before the City Council. By statute and under the City Charter, the City Council has the power to hire and discharge employees. The City Council delegates its authority to conduct the hearing to a hearing officer. The employee requests a public hearing.
The City’s personnel policies give an employee who is discharged the right to a post- disciplinary hearing at the employee’s request. Although an individual hearing officer is conducting the hearing, the hearing is subject to the Open Meetings Act because the hearing officer is exercising the City Council’s delegated authority to terminate employees. Accordingly, the hearing officer must conduct the hearing in public because the employee requested an open hearing.
Commentary
The limited personnel matters exception confers upon candidates for judicial office the right to a public interview by a commission charged with conducting such interviews.