Closed Session Deep Dive: Personnel Matters
The open meetings law requires all official meetings of public bodies to be open to the public. G.S. 143-318.10(a). However, government bodies can hold closed-door meetings, called closed sessions, under certain limited circumstances. This post focuses on the personnel matters closed session purpose and is Part 1 of a series that will examine each of the closed session purposes in detail.
Purpose (a)(6): Personnel Matters
Under G.S. 143-318.11(a)(6), the public is not entitled to access an official meeting of a public body that discusses a current or prospective public officer or employee. (See this blog for more on public offices). More specifically, the discussions must involve employees’ or public officers’ “…qualifications, competence, performance, character, fitness, conditions of appointment, or conditions of initial employment…”. Other permissible discussions include hearing or investigating a complaint, charge, or grievance by or against an individual officer or employee.
This subsection contains a couple of clear restrictions. First, discussions of general personnel policy issues must occur in open session. Second, a public body may not discuss one of its own members or any members of other public bodies. Third, a public body may not consider or fill a vacancy among its membership. Finally, any final action appointing, discharging, or removing a public officer or employee must occur in open session.
Let’s walk through the language of the statute.
“To consider the qualifications, competence, performance, character, fitness, conditions of appointment, or conditions of initial employment of an individual public officer or employee or prospective public officer or employee…”
Here, the statute explicitly authorizes discussing and deliberating about current and prospective public officers’ and employees’ employment qualifications and conditions. For example, this subsection permits a governing board to conduct performance reviews of those employees it has the statutory authority to fire. It also permits a governing board to hold interviews for positions it has the statutory authority to hire. Discussing potential employment details such as compensation, promotion, and disciplinary procedures of such employees is also legal, as long as those discussions are linked to a particular employee or public officer.
A public body can reach a tentative consensus on disciplinary procedures for a particular public officer or employee, but it is not entirely clear that the public body can officially impose them in closed session. On one hand, the statute does not specifically authorize imposing disciplinary procedures in closed session. On the other hand, the statute does not state that disciplinary measures must be taken in open session, like it does for hiring, firing, and removal. Considering the competence, performance, character, and fitness of an employee or public officer is directly linked to disciplinary procedures, so arguably, a closed session vote to impose particular disciplinary procedures on an employee or public officer is enforceable—assuming, of course, that the public body has disciplinary authority over the public officer or employee under law.
“…[O]r to hear or investigate a complaint, charge, or grievance by or against an individual public officer or employee.”
Note that the section covers discussions of complaints made both by and against individual public officers and employees. There is no mention of prospective officers or employees, so discussions regarding complaints, charges, or grievances made by or against applicants, candidates, or nominees likely are not eligible for this closed session exception. However, information and records about applicant grievances, charges, or complaints are confidential under G.S. 160A-168 (city employees and applicants) and G.S. 153A-98 (county employees and applicants) if they relate to the applicant’s potential employment with the public body. As a result, a public body could discuss complaints, grievances, or charges by or about applicants in closed session under subsection G.S. 143-318.11(a)(1), the confidential information closed session purpose, if those discussions were connected with considerations of the applicants’ potential employment.
“General personnel policy issues may not be considered in a closed session.”
What is a “general personnel policy issue?” While courts have not confronted this question, personnel matters that are not linked to a specific employee or officer seem to qualify. For example, discussing an employee’s salary in closed session is permissible if the discussion is connected to the employee’s character, fitness, competence, or performance in their employment. In contrast, debate about the compensation of a particular position in the pay plan must occur in open session. Similarly, whether to create or eliminate certain positions should be discussed in open session if not linked to a particular employee’s or officer’s performance. Updating personnel policies or human resources manuals are general personnel policy issues that must be discussed in open session. All in all, local governments using this closed session purpose should consider first whether the discussion relates to a particular employee or officer. If not, the discussion must be held in open session, unless it falls under another statutory closed session purpose.
“A public body may not consider the qualifications, competence, performance, character, fitness, appointment, or removal of a member of the public body or another body and may not consider or fill a vacancy among its own membership except in an open meeting.”
A public body cannot discuss its own members in closed session, nor can it discuss or fill vacancies in its membership. This requirement creates a somewhat awkward dynamic, but the statute specifically mandates public access to these discussions. In addition to not being able to discuss its own members, public bodies also cannot discuss the members of other public bodies unless some other closed session purpose applies.
“Final action making an appointment or discharge or removal by a public body having final authority for the appointment or discharge or removal shall be taken in an open meeting.”
To properly hire, fire, or otherwise remove a public officer or employee over whom the public body has appointing or dismissal authority, the public body must vote on the matter in open session. This requirement does not preclude taking consensus votes in closed session. For example, the board is considering firing Employee X. The board can hold a vote on whether to fire Employee X in closed session. However, it must re-do that vote in open session for the firing to be legally enforceable. Taking the vote in closed session and merely announcing the result is insufficient. Why? The statutory language says “final action making an appointment or discharge…”. The action that makes an appointment or effectuates a discharge or removal is a board vote. It is that action that is required to be in public.
Access to Closed Session Minutes and General Accounts for Personnel Matters
Closed session minutes and general accounts are public records but can be withheld for so long as their release would frustrate the purpose of the closed session. G.S. 143-318.10(e). It might appear that as soon as an employment action like hiring or firing is concluded, releasing the appropriate closed session minutes would not undermine the purpose of the closed session. However, closed session minutes and general accounts of personnel closed sessions may qualify as confidential personnel file information under G.S. 160A-168 (cities) and G.S. 153A-98 (counties). Under those statutes, personnel file information is any information in any form gathered by a city or county about an employee (current and former) and related to some employment action regarding the employee. Confidential personnel file information can only be disclosed to select individuals and under select circumstances, so local governments should not assume that closed session minutes and general accounts can be released following the resolution of a personnel matter.
Instead, access to these minutes and general accounts depends on their content. Even under G.S. 160A-168 and 153A-98, certain current and former employee information, but not applicant information, is public. (See subsection (b) of both statutes for a full list). If the minutes and general accounts contain only public information, then releasing them at the conclusion of a personnel matter would not violate either of these statutes. If the minutes contain a mix of confidential and public information, any confidential information must be redacted before disclosure. If the entirety of the minutes is non-public personnel file information, the minutes must be withheld indefinitely.
What if an individual member of the public body wants to review closed session minutes and general accounts from a personnel closed session? Individual board members may only review redacted versions. Why? Sections 160A-168 and 153A-98 allow employees, their representatives, and their supervisors to review confidential personnel file information. While the board as a whole may have supervisory authority over an individual employee or public officer, individual board members generally do not have that authority. For that reason, the individual board member must be treated just like any member of the public. Board members may review un-redacted closed session personnel minutes collectively as a board when the board as a whole has supervisory authority over the employee or public officer at issue. Otherwise, review of unredacted personnel purpose minutes by individual board members may be a statutory violation.
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