The Honorable Eloise B. Carson
Office of the Attorney GeneralFebruary 17, 2006
2006 WL 1900656 (Miss.A.G.)
Office of the Attorney General
State of Mississippi
*1 Opinion No. 2006-0042
*1 February 17, 2006
Re: Confidentiality of Executive Session
*1 The Honorable Eloise B. Carson
*1 Alderman, Ward 3
*1 City of Tunica
*1 Post Office Box 1974
*1 Tunica MS 38676
Dear Ms. Carson:
*1 Attorney General Jim Hood has received your request for an official opinion and has assigned it to me for research and response. Your letter asks the following questions concerning executive sessions of a board of aldermen, which we will respond to in sequence:
*1 1. What exactly is to be held in confidence?
*1 Mississippi's open meetings act (Miss. Code Ann. Sections 25-41-1 et seq. (1972)) authorizes a public body to go into executive session for the specified reasons found in Miss. Code Ann. Section 25-41-7(4)(1972). This office has stated in previous opinions that there is nothing in the open meetings law that prohibits members of the board of aldermen from disclosing information discussed during executive sessions, nor does the law provide any penalties for those persons who disclose matters discussed in executive session. MS AG Op., Thomas (September 10, 2004); MS AG Op., Hickman (March 4, 1982); MS AG Op., Smith (April 3, 1984).
*1 However, you should also be aware that Miss. Code Ann. Section 25-41-7(4)(a) provides that a public body may hold an executive session for transaction of business and discussion of personnel matters relating to the job performance, character, professional competence, or physical or mental health of a person holding a specific position. In previous opinions this office has stated that discussions related to prospective appointments to governmental boards are not a proper basis for a governmental body to go into executive session (see MS AG Op. Mitchell (August 23, 1989) and MS AG Op., Slade (January 26, 1982)). Additionally, under Section 25-41-7 (4) a change in the Main Street bylaws is not a proper matter to be discussed and voted on in executive session.
*1 In MS AG Op., Morgan (May 21, 2004), we discussed the decision by a governing body to go into executive session as follows:
*1 Section 25-41-7(3) also states that “[n]othing in this section shall be construed to require that any meeting be closed to the public, nor shall any executive session be used to circumvent or to defeat the purposes of this chapter.” We note that “[w]hile the exceptions to the statute are to be construed narrowly, the statute is to be construed liberally to keep public meetings open.” Gannett River States Pub. Corp., Inc. v. City of Jackson, 866 So.2d 462, 469 (Miss. 2004). Or, as stated in Hinds County Board of Supervisors v. Common Cause of Mississippi, 551 So.2d 107, 125 (Miss. 1989): We also hold that within the framework of the statutory language itself all statutory exceptions must, under the spirit and philosophy of the Act, be strictly construed against executive sessions. Ridenour v. Board of Education, 111 Mich.App. 798, 314 N.W.2d 760 (1981), and that no exception can be “as broad as the law itself.” Maser v. City of Canton, 62 Ohio App.2d 174, 405 N.E.2d 731, 735 (1978). The very purpose of the Act is for all meetings to be open, public. It therefore follows that even though an executive session might come under “personnel matters,” or another of the subjects listed under Miss. Code Ann. Section 25-41-7(4), this in and of itself is insufficient in the absence of at least a reasonably arguable basis of an actual, present need for a closed meeting on the subject. To hold otherwise would indeed be making the exception as broad as the Act itself, and emasculate the admonishment of Miss. Code Ann. Section 25-41-7(3): “… nor shall any executive session be used to circumvent or to defeat the purposes of this chapter.” It is “essential” that “public business be performed in an open and public manner.” Miss. Code Ann. Section 25-41-1.
*2 The Court noted that the stated reason for going into executive session must be specific, concrete and identifiable as one of the matters allowed for executive session. Id.
*2 2. How much information leading up to a motion should be in the minutes?
*2 Miss. Code Ann. Section 25-41-11 (1) (1972) provides, in pertinent part, as follows:
*2 (1) Minutes shall be kept of all meetings of a public body, whether in open or executive session, showing the members present and absent; the date, time and place of the meeting; an accurate recording of any final actions taken at such meeting; and a record, by individual member, of any votes taken; and any other information that the public body requests be included or reflected in the minutes.
*2 Thus, “an accurate recording of any final actions taken at such meeting” must be recorded, along with the other items required by Section 25-41-11. The inclusion of other information in the minutes is left to the discretion of the board of aldermen.
*2 3. If a motion dies for lack of a second, is it to be included in the minutes?
*2 As stated in our response to question 2, only the recording of final actions must be included in the minutes. It is left to the discretion of the governing board whether to include other information in the minutes.
*2 4. Are the minutes from an executive session to be attached to the minutes of the regular meeting?
*2 Yes. Section 25-41-11 states that the minutes of a meeting ” shall be recorded within a reasonable time not to exceed thirty (30) days after recess or adjournment and shall be open to public inspection during regular business hours.” Accordingly, the minutes of any executive session must be incorporated with, or otherwise attached, to the minutes of the meeting in which the executive session was held.
*2 5. Should the Main Street Manager have discussed with the Board of Directors what was said in the executive session?
*2 See response to question 1.
*2 6. What recourse if any do the Board of Aldermen have when such a serious breach takes place?
*2 See response to question 1.
*2 7. Is the Mayor to be held to the same code of ethics as the board of aldermen, especially when she admonished everyone in the room not to discuss any proceedings of the meeting outside the boardroom?
*2 Since Attorney General opinions may only address matters of state law, we cannot offer a response to this question.
*2 Please let me know if you would like to discuss this matter or if I can be of further assistance.
2006 WL 1900656 (Miss.A.G.)
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