Executive Session

If there’s one statute that every selectman should read, it’s Chapter 30A, Section 21(a), which identifies the only allowable circumstances under which a public body may go into an "executive session" (i.e., a closed or confidential session). A close reading would dispel many myths, such as that a board may convene in an executive session whenever the subject of personnel comes up, or litigation, or contract negotiations. Most public business can and should be conducted in open session. Executive sessions should be the exception, not the rule. When problems arise, town counsel should be consulted for guidance.

Before going into an executive session, a board must start its meeting in open session. The motion to go into executive session must be reasonably specific about the purpose. The chair must state all subjects concerning the purpose that can be revealed without compromising the purpose of the executive session. A board may cite more than one exemption if applicable. Failure to properly state the reason for the executive session can result in the session being declared invalid, with the result that all matters within the session become public.

The vote to go into an executive session must be conducted by roll call, as are all votes in executive session. Before the executive session, the chair must state whether the open session will reconvene after the executive session. If the chair fails to state that the meeting will return to open session, the board cannot do so. Generally, it is advisable to return to open session.

While in executive session, the board can only discuss matters coming within the reason(s) stated for the executive session.

If a meeting has not been properly posted, the board cannot convene in open session in order to go into executive session.

For some purposes, special conditions must exist to go into executive session. For example, the board may be required to notify the subject of the executive session in advance of the meeting, and to inform the subject he or she has a right to be present, to speak, to have legal representation present, and to be able to make an independent record of the meeting.


Jeff Bennett