What is an executive session?

As the senior staff writer for the Standard, I’ve attended and written about numerous selectboard meetings over the course of the past two years, taking significant note of the confusion on the part of both elected officials and engaged citizens about the legal requirements of Vermont’s open meeting statutes, particularly as they relate to an item that appears frequently on the agenda of most governing bodies: the executive session.

As an elected official myself — I currently serve on the selectboard in Randolph and previously served two terms on the Burlington City Council — and as a reporter, I’ve become increasingly aware of the challenges that abiding by the state’s executive session requirements can pose for selectboard members, other municipal leaders, and concerned citizens alike.

Consider, for example, two situations in an Upper Valley community in recent months. In one instance, a selectboard chair invited a private citizen and former selectboard member into a confidential executive session called to discuss a personnel matter related to the town highway department that had nothing to do with the individual in question. And in a more recent incident, the same selectboard, under a new chair, listed an executive session first on its regularly scheduled meeting agenda, ostensibly to discuss the hiring of a new person to fill an important, vacant administrative role at town hall. The selectboard then proceeded to hire the new staff member in open session the first thing that night before going into executive session several agenda items later to discuss the new appointee’s salary and benefits package in confidence. In neither instance did the board follow the correct statutory procedures for going into executive session, raising questions of transparency and legality that could have impacted the legitimacy of the decisions rendered at those meetings.

The intent here, however, is not to hold these elected officials at fault nor to suggest that they had any nefarious intent in the way the executive sessions were called and held. The aim instead is to familiarize local public officials — mostly well-intentioned, elected or appointed community volunteers who receive modest if any stipends for their work — and their constituents with the basic tenets of the state’s open meeting laws. The aim is not to foster controversy but to minimize it. That said, I offer my thanks to the good people at the Vermont League of Cities and Towns (VLCT) for the following information, drawn from a Q&A primer for public officials drafted by the association.

Vermont’s Open Meeting Law requires that “(all) meeting(s) of a public body are declared to be open to the public at all times, except as provided (for executive sessions).” The intent of the law is to create transparency in government by requiring advance public notice and an opportunity for public participation in governmental decisions. An executive session is a closed portion of a public meeting and is allowed only in certain situations. Depending upon the issue at hand, a selectboard or other governing entity may or may not make a decision about the issue at hand back in public session following the adjournment of the executive session. The statutorily limited instances in which a municipal governing body may go into executive session are as follows: 

  • Negotiating or securing a real estate purchase or lease.
  • The appointment or employment or evaluation of a public officer or employee, except that the public body must make a final decision to hire or appoint in an open meeting and it must explain the reasons for its final decision.
  • A disciplinary or dismissal action against a public officer or employee, but such officer or employee has a right to a public hearing if formal charges are brought.
  • A clear and imminent peril to public safety.
  • Discussion or consideration of records or documents that are exempt from public records laws, but that does not give (the governing body) authority to discuss the general subject to which the (specific) document(s) pertain.
  • Security or emergency response measures, the disclosure of which could jeopardize public safety, and
  • When (and only when) the public body has made a special finding that premature public knowledge would clearly place the state, municipality, other public body, or a person involved at a substantial disadvantage, (in which case a municipal body may go into executive session) to discuss contracts, labor relations agreements with employees, including arbitration and mediation, grievances other than tax grievances, pending or probable civil litigation or prosecution to which the public body may be a party, and/or confidential attorney-client communications for the purpose of providing professional legal services to the body.

In my experience, elected and appointed governing bodies in the area and the state often fall short of demonstrating an executive session is in order. This tendency is exacerbated by the fact that many selectboards, for example, do not follow the proscribed logistics for entering into such a confidential session. Under state law, two motions to go into executive session must be made during the open portion of a meeting and must indicate the nature of the business to be discussed. The VLCT recommends that public bodies cite the specific statutory provision that gives authority for such a session. The association, which assists Vermont’s municipal leaders with an array of advisory services on governance, regulations, and legal issues, even provides carefully worded samples of correct motions, to wit:

“I move to find that premature general public knowledge regarding the town’s contract with ABC Company would clearly place the town at a substantial disadvantage, because the selectboard risks disclosing its negotiation strategy if it discusses the proposed contract terms in public,” (and)

“I move that we enter into executive session to discuss the town’s contract with ABC Company under the provisions of Title 1, Section 313(a)(1)(A) of the Vermont Statutes.”

The other major stumbling block within Vermont’s Open Meeting Law relates to who is allowed into an executive session beyond the official members of a governing body and why. According to the statute, only selectboard members have the right to attend an executive session. Whether anyone else attends or is excluded is up to the discretion of the selectboard. “Attendance in executive session,” the law reads, “shall be limited to members of the public body, and, in the discretion of the public body, its staff, clerical assistants, and legal counsel, and persons who are subjects of the discussion or whose information is needed.” All persons to be admitted to an executive session must be identified in public session prior to the convening of the confidential meeting.

While violations of the Open Meeting Law, including its executive session provisions, rarely result in legal action against municipal governing bodies, that is by no means a certainty. The law states that the Vermont Attorney General or “any person aggrieved by a violation of the law” can bring an action in Superior Court for injunctive relief and judgment.” In addition, a person who knowingly and willfully violates the Open Meeting Law may be guilty of a misdemeanor punishable with a fine of up to $500.

Local officials in Vermont as well as concerned citizens who engage with their elected officials would do well to familiarize themselves with all the details of Vermont’s open meeting regulations. Detailed information and an explainer are available at https://www.vlct.org/open-meeting-law-faqs.

Tom Ayers is a senior staff writer for the Vermont Standard.