In a binding opinion, the Public Access Counselor (“PAC”) found that a school board violated the Open Meeting Act (“OMA”) when it improperly discussed certain matters related to the sale of real property during closed session that were outside the scope of the cited exception because they did not pertain directly to the setting of the price for sale. The school board went into closed session citing Section 2(c)(6) of the OMA, which allows a meeting to be closed for discussions of the “setting of a price for sale or lease of property owned by the public body.” At the time of the meeting in question, the school board had already approved a sealed bid process and terms for selling the property, including a minimum sales price of $55 million.
Upon review, the PAC determined that the school board discussed processes for the marketing and selling the property that could play out following acceptance or rejection of the bids to purchase the property but did not discuss setting the price of the property. While the school board argued that such matters were intertwined with price, the PAC found that Section 2(c)(6) of the OMA does not authorize closed session discussion of marketing and selling property when the discussion does not directly pertain to setting the price for the sale of the property. In its opinion, the PAC emphasized that Section 2(c)(6) of the OMA is explicitly narrower than Section 2(c)(5) of the OMA, which allows a public body to enter closed session to discuss the purchase or lease of real property, without limiting such discussion to price. Thus, the Board’s discussion exceeded the scope of the OMA exception, and the PAC ordered the school board to make the closed session verbatim recordings and minutes publicly available.
This case serves as a reminder that OMA closed session exceptions are interpreted narrowly. Thus, even though the exception for discussing the acquisition of real property is broader, closed session discussions of real estate sales must be limited to setting the price for the sale. Boards should be careful not to discuss stray topics in closed session, particularly when discussing the sale of real estate.
Source: Public Access Opinion 23-005
