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Closed Session Discussion of General Personnel Matters, including Salaries and Potential New Employment Positions, Violated the OMA

By June 26, 2023August 18th, 2023News, The Extra Mile Newsletter

In a nonbinding opinion, the Public Access Counselor (“PAC”) found that a city council violated the Open Meeting Act (“OMA”) when it improperly discussed certain matters during closed session that were outside the scope of the cited exception. During one meeting, the city council cited Section 2(c)(1) of the OMA, which allows public bodies to enter closed session to discuss “[t]he appointment, employment, compensation, discipline, performance, or dismissal of specific employees…”  During the closed session, the city council discussed a discrimination complaint against the city that was filed with the EEOC and its implications, including potentially hiring a future qualified minority applicant to fill a new employment position in response to the EEOC complaint. Upon review, the PAC emphasized that because the conversation centered on hiring applicants to fill a new employment position rather than on a specific employee, the cited exception did not authorize that portion of the closed session discussion. While the city argued that the discussion may have been authorized under Section 2(c)(11) of the OMA, which allows discussions regarding ongoing litigation, the city council failed to cite that exception before entering into closed session, as required under the OMA.

In a similar analysis, the PAC found the city council violated the OMA at a subsequent meeting, when it discussed, in general terms, a salary study, unfilled employment positions, and the possibility of creating new positions. These portions of the closed session also failed to reference “specific employees” as required under Section 2(c)(1) of the OMA.

This nonbinding opinion serves as a reminder that the exception under Section 2(c)(1) of the OMA is limited to discussions about specific employees, not general discussions of matters pertaining to personnel.  As always, be sure to stick to the matter at hand so discussion does not veer beyond the scope of the permitted exception.

Sources: Non-Binding Opinion (2023 PAC 75029; 75075; 75082) issued May 5, 2023