Clerk Net

First of all, please note that there isn't any statutory guidance on this issue.

I think that the town board has at least a couple of options. It could simply put the opening of the closed session minutes for the particular meeting in question on the agenda for approval, as you suggest. The attorney could then have each other set of closed session minutes that s/he felt were ready for opening also placed on the agenda during some meeting for council vote.

Keep in mind that closed session minutes may only be sealed for as long as necessary to avoid frustrating the purpose of the closed session. This means that many sets of closed session minutes (those pertaining to property acquisition, for example) will be opened fairly soon, while some (those involving personnel discussions, for example) might be permanently sealed (for example, as part of someone's personnel file).

If the town board finds this case-by-case determination of whether and when to open burdensome, it could adopt a resolution setting out a policy for unsealing closed session minutes. That policy might delegate to the town attorney and clerk and/or manager the authority and responsibility to review the closed session minutes quarterly (you could make
the interval of time different), and then open those closed session minutes for which the purpose of the closed session would no longer be frustrated by keeping them closed. The action opening the minutes (date and by whom) should be noted at the top of the opened minutes. If the board opened the minutes, the board's action will of course also be noted in the minutes of the meeting at which the board voted.

Opened closed session minutes should either be inserted somewhere in the regular minutes book (at their appropriate page, or in the back), or kept in a separate "opened closed session minutes book." If the opened minutes do not appear at their appropriate page chronologically in the minutes, you should make a marginal notation in the minutes stating where they can be found.

In my opinion, the vote of a council member or commissioner participating in a meeting by telephone or proxy would not stand up if tested in court, because there is simply no statutory authority for the practice. The Open Meetings Law mentions meeting by conference telephone call, but that law is not an enabling statute — it only supplies rules that must be followed if a board is otherwise meeting properly under the general city enabling or county enabling laws (see G.S. Chapter 160A, Article 5, and Chapter 153A, Article 4, respectively). The enabling statutes establish detailed rules for holding city council and county board of commissioner meetings, but they do not mention meeting by phone or proxy, in contrast to the statutes for private corporations, which allow for proxy voting and the like.

On the other hand, I see no reason not to allow a board member to participate in the discussion, as long as the two-way hook-up allows him or her to hear everything that is going on in the council chambers and allows those at the meeting to hear the member. The clerk could also record how the member would vote if he or she were physically present at the meeting, and she or he could put this “telephone vote” (noted as such) in the minutes. Similarly, you could allow an absent member’s purported “proxy” (their opinion) to be entered on the record. The bottom line is that I would not want to rely on such a vote to decide a case.

Boards that do not have detailed statutory rules of procedure, the list of which includes most other local government boards, might be able to use telephone or proxy voting, if they have specifically provided for it in their own internal rules of procedure. However, the answer to this question is unclear.

Make sure that you consult your local attorney in all situations involving “unusual” voting, and make sure that you follow the attorney’s advice closely. Courts are quick to invalidate actions if improper procedures were used, so it is essential for the attorney to guide you every step of the way.

There are three separate and distinct stages in the minutes approval process for local government boards. Different people should play different roles at each stage.

1. It is the clerk’s legal responsibility to prepare the minutes or journal of the board’s proceedings. The clerk’s minutes are the draft that the board considers and acts to modify or approve.
2. It is the role of each board member to review the draft minutes, note any proposals that they have for changes, and bring those proposals to the board meeting where the minutes will be considered for approval. No one except the board, voting in a properly called and held meeting, has the legal authority to tell the clerk to change her or his draft minutes to incorporate such proposed changes.
3. It is the role of the board, meeting in a properly called and held meeting, (a) to review the draft minutes as a group, (b) to consider and act on any proposals for changes in the draft that are brought to it by board members, the presiding officer, the clerk, the manager, department heads, or other interested parties, and (c) to vote to approve the final, official minutes. Those approved minutes are to include whatever changes the board chooses to make. Otherwise, they are to retain the wording of the clerk’s original draft.