To Vote or Not to Vote . . . In Open Session

By: Q. Shanté Martin, Of Counsel

After years of representing and advising various public boards, including the State Board of Community Colleges and local community college boards of trustees, I have repeatedly witnessed a very common mistake – voting on a closed session topic in open session when it’s not required or when it’s a violation of another law.  The common mantra is, “All votes must take place in open session,” but there are only two scenarios where the Open Meetings Law requires local community college boards of trustees to vote in open session.

Open Session Voting Not Required

Of the exclusive statutory list of ten reasons local community college boards of trustees are permitted to go into closed session, only two of those ten statutes require voting in open session:

1. Economic Development: S. 143-318.11(a)(4) provides that “Any action approving the signing of an economic development contract or commitment, or the action authorizing the payment of economic development expenditures, shall be taken in open session.”

2. Appointments, Discharge, or Removal: S. 143-318.11(a)(6) provides that “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.”

Since only G.S. 143-318.11(a)(4) and (a)(6) require public bodies to vote in open session, unless a local community college board is voting on an economic development related issue or voting on an appointment, discharge, or removal of an employee if it’s the final action, then nothing requires the board to vote on that closed session item in open session.  Additionally, G.S. 143-318.11(a)(3) explicitly authorizes a public body to vote to approve a settlement in closed session thereby invalidating the idea that “All votes must take place in open session.”

Closed Session Voting Possibly Required

Community college boards may want to vote on some matters in closed session.

Election of Community College Presidents:

G.S. 143-318.11(a)(6) provides that, “Final action making an appointment or discharge or removal by a public body having final authority . . . shall be taken in an open meeting.”  This means that actions that are not final and actions that are not taken by the final authority are not required to be voted on in open session.  For example, per G.S. 115D-20(1), local community college boards of trustees have the authority to “elect a president . . . of the institution” “subject to the approval of the State Board of Community Colleges.”  As such, a community college board of trustees’ election of a community college president is not the final action, and the community college board is not the “public body having final authority” to hire a community college president.  Thus, local community college boards are permitted to vote on that election in closed session.  While there may be reasons why a local community college board may want to vote on the election of a new president in open session, I just want to make clear that the Open Meetings Law does not require local community college boards to vote on the election of a community college president in open session.

Community College Committee Actions:

Also, board committees often err by voting on a closed session topic in open session.  For example, after closed session discussion, the personnel committee may vote to recommend a personnel hire in open session because of the belief that all votes must take place in open session.  However, board committees are not the “final authority” making the “final action” to hire an employee, so board committees are not required to vote on personnel recommendations in open session.  In fact, committees should refrain from voting on personnel recommendations in open session because that would violate G.S. 115D-27 and G.S. 115D-29 which makes information related to an individual’s application for employment confidential personnel file information.  Given the confidentiality of the applicant’s status at the time the committee makes its recommendation to the board, the committee should vote on the recommendation in closed session to protect confidentiality.

Conclusion

Local community college boards of trustees should dispel the idea that all votes must take place in open session because there are only two instances where local community college boards of trustees are required to vote in open session.  For questions related to voting in closed session, I encourage boards to consult with legal counsel to refrain from violating other laws in an effort to comply with the Open Meetings Law.

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Q. Shanté Martin is an attorney with Cranfill Sumner & Hartzog LLP, a North Carolina-based law firm and NCACCT Business Partner.   Founded in 1992, CSH Law advises and represents clients in all stages of litigation before federal and state courts in North Carolina, as well as select administrative agencies.  For more information please visit: www.cshlaw.com