The Yankton City Commission will take up a discussion tomorrow (Monday) to make our municipal government more transparent.
If you have strong feelings on the matter — one way or another — I encourage you to attend and share them.
The meetings gets under way at 7 p.m. at the Technical Education Center.
Below you can peruse the memorandum I shared with my fellow commissioners (and can be found in the commission packet made available to the public).
Dear City Commissioners,
Government transparency is an issue that I believe helps ensure trust between governing entities and the public.
I know from experience that the City of Yankton takes open government efforts seriously and does a good job of keeping the public informed.
However, there are ways we can strengthen our transparency efforts and, I believe, build more trust with the public.
Of special interest to me is the subject of executive sessions. During 2014, the Yankton City Commission spent just more than 30 hours in regular session — and just more than 22 hours in executive session.
In other words, we spend a lot of time in closed meetings. This can create perceptions among our constituents that we are being secretive or have something to hide.
I want to create more accountability for the time we spend in executive sessions. This is not to suggest we have been/are doing anything wrong. It is simply an effort to improve transparency.
One way I believe we can do this is by recording executive sessions and, in some cases, possibly releasing those recordings to the public at an appropriate point in time.
What follows is research I have compiled regarding open meetings laws in other states/cities.
Some key questions I think we need to address if we proceed with recording executive sessions are:
1) Should we also take some form of minutes?
2) What is the purpose we wish to accomplish by recording executive sessions?
a. For example, in Colorado it is ”solely to permit policing of the requirements that discussion in an executive session focus solely on the matters(s) for which the session is called and that the session be used for deliberation only, rather than for decision making.”
b. Other states record the sessions with the intent of eventually releasing at least some of them to the public.
3) Who will have access to these recordings?
a. Presumably, we would want a judge to be able to review the tapes in order to settle a legal dispute.
b. Can a commissioner, who was or was not present for the closed session, request a copy of the recording?
4) How long will the recordings be retained?
5) Are there instances in which the recordings will be made public?
a. For example, in Anchorage, Alaska, “if the session concerns labor negotiations, the release date shall be six months following expiration of the labor contract.”
b. In Iowa, if a session is closed to discuss the purchase or sale of particular real estate, the records of that closed meeting must be made available for public examination when the transaction is completed or canceled.
According to the Reporters Committee for Freedom of the Press, here are the states that require recordings of executive sessions: Colorado, Nevada, Iowa and North Dakota.
Either a recording or minutes are required in Oregon and Texas.
Recordings are not required but are permitted in California, Kentucky, Maryland and Ohio.
Some states require a recording only under particular circumstances. In Minnesota, an executive session for labor negotiations must be recorded. In Utah, a closed session must be recorded if it is convened for reasons not laid out in Utah law.
Below, I’ve collected information about open meetings laws in places where a recording is required to help us understand how this is employed by those entities.
Yankton City Commission
I’ve included Alaska, because its state law does not require the recording of executive sessions. However, the City of Anchorage has established in its own ordinances that the meetings are to be recorded.
Here is information about the Alaska state law:
4. Recording and minutes There is no statutory requirement to take minutes or make a recording of the discussions in executive session. However, at least one superior court judge has observed that one reason why he was unable to determine whether an executive session in question was legal was that no recording had been made of the session. Some public bodies do record executive sessions (the tapes are not released to the public) while others do not. Municipal attorneys and public officials in this state disagree about whether an executive session should be recorded. Until the law is clarified by the legislature or the Supreme Court, it seems likely there will continue to be inconsistency in the practices of various public entities on this issue.
Here is the law in Anchorage:
1. The assembly may recess to meet in executive session to discuss the following subjects if the express nature of the subject is stated in the motion calling for the session: a. Pending litigation; b. Labor negotiations with municipal employees; c. Matters that, if immediately disclosed, would clearly affect adversely the finances of the municipality; or d. Matters which tend to defame or injure the reputation of persons.
2. No official action may be taken in executive sessions. Although the public may be excluded, the session shall be electronically recorded. The tapes shall be available for public access according to the following schedule: a. If the session concerns pending litigation, the release date shall be when all causes of action have been resolved by final judgment or when further claims arising from the matter are otherwise barred; b. If the session concerns labor negotiations, the release date shall be six months following expiration of the labor contract; c. If the session concerns matters that, if immediately disclosed, would adversely affect the finances of the municipality, the release date shall be a date certain set by the assembly at the conclusion of the executive session; and d. If the session concerns matters which tend to defame or injure the reputation of persons the assembly may set a release date or may provide that no release shall occur.
3. The assembly may extend the time periods set forth in subsection 2. of this subsection only for good cause shown.
4. Notwithstanding any provisions of chapter 3.90 to the contrary, tapes or minutes of an executive session shall be available only to assembly members or authorized municipal staff until the date of release, if any, as authorized under the provisions set forth in this subsection.
2014 Minnesota Statutes
13D.03 CLOSED MEETINGS FOR LABOR NEGOTIATIONS STRATEGY. Subdivision 1.Procedure. (a) Section 13D.01, subdivisions 1, 2, 4, 5, and section 13D.02 do not apply to a meeting held pursuant to the procedure in this section. (b) The governing body of a public employer may by a majority vote in a public meeting decide to hold a closed meeting to consider strategy for labor negotiations, including negotiation strategies or developments or discussion and review of labor negotiation proposals, conducted pursuant to sections 179A.01 to 179A.25. (c) The time of commencement and place of the closed meeting shall be announced at the public meeting. (d) A written roll of members and all other persons present at the closed meeting shall be made available to the public after the closed meeting.
Subd. 2. Meeting must be recorded. (a) The proceedings of a closed meeting to discuss negotiation strategies shall be tape-recorded at the expense of the governing body. (b) The recording shall be preserved for two years after the contract is signed and shall be made available to the public after all labor contracts are signed by the governing body for the current budget period.
Subd. 3.If violation claimed. (a) If an action is brought claiming that public business other than discussions of labor negotiation strategies or developments or discussion and review of labor negotiation proposals was transacted at a closed meeting held pursuant to this section during the time when the tape is not available to the public, the court shall review the recording of the meeting in camera. (b) If the court finds that this section was not violated, the action shall be dismissed and the recording shall be sealed and preserved in the records of the court until otherwise made available to the public pursuant to this section. (c) If the court finds that this section was violated, the recording may be introduced at trial in its entirety subject to any protective orders as requested by either party and deemed appropriate by the court.
Can an open meeting be closed?
Before a governing body can close a portion of its meeting, it first must convene in a properly noticed open meeting. Next, it has to announce the legal authority to close the meeting and the topics to be considered during the closed portion of the meeting.
After that, unless the law requires a closed meeting, the governing body must vote on whether to close the meeting. Any executive session must be tape recorded. All substantive votes must be re- corded by roll call.
How Do I Conduct an Executive Session?
Only the portions of a public meeting that are specifically confidential or exempt from the open meetings law, or during which confidential or exempt records are discussed, may be closed to the public and held in executive session. The remainder of the meeting must be open to the public. Although certain statutes may apply to particular meetings or entities, state law specifies the following general procedure for holding an executive session.
1. Convene in an open session preceded by public notice;
2. Pass a motion to hold an executive session, unless a motion is unnecessary because a confidential meeting is required;
3. Announce during the open portion of the meeting the topics to be considered during the executive session and the legal authority for holding an executive session on those topics;
4. Record the executive session electronically or on audio or video tape;
5. Limit the topics considered during the executive session to the announced, authorized topics; and
6. Take final action on the topics considered in the executive session during the open portion of a meeting. Under these provisions, a governing body’s authority to hold an executive session may be invoked only during a properly noticed open meeting, and not during a separate meeting for which public notice is not provided. To close a portion of the meeting, the governing body may either excuse the public or reconvene in another location. Under N.D.C.C. §44-04-19.2(2), a vote to go into executive session is not necessary if a confidential meeting is required or if the governing body is closing the meeting to discuss confidential records. However, because a discussion of exempt records does not necessarily have to occur in an executive session, a vote is necessary to determine whether the discussion will occur in an open meeting or in an executive session. The recording of an executive session may be disclosed upon a majority vote of the governing body, unless the executive session was required to be confidential. The recording must be disclosed pursuant to court order or to the Attorney General for the purpose of administrative review. The Attorney General must return the recording to the governing body upon completion of the administrative review without disclosing the recording to the public. Unauthorized disclosure of the recording by a public servant is a violation of N.D.C.C. §12.1-13-01. The recording and any minutes of an executive session remain closed even if the underlying statutory basis for the executive session no longer applies. The recording must be maintained by the public entity for a minimum of six months after the executive session. Although all executive sessions must be recorded, minutes of executive sessions need not be kept. The minutes of an open meeting during which an executive session is held must indicate the names of the members attending the executive session, the date and time the executive session was called to order and adjourned, a summary of the general topics that were discussed or considered that does not disclose any closed or confidential information, and the legal authority for holding the executive session. N.D.C.C. §44-04-19.2(4).
Minutes and recordings under the OML?
The OML requires that written minutes be kept of each meeting of the public body, for both closed and open sessions. Written minutes must include the date, time, and place of the meeting, the members of the public body who were present, the substance of all matters proposed, discussed or decided, the substance of oral or written remarks made by a member of the public if he so requests, and any other information which a member of the public body requests to be included. Written minutes, and any audio or tape recordings of an open meeting must be available for public inspection within 30 working days after adjournment of the meeting. Minutes of public meetings must be retained by the public body for at least five years. Upon request, minutes of closed sessions must be provided to the person to which the closed session pertained within 30 working days of adjournment of the meeting. Minutes of closed sessions are generally not public records.
Minutes of meetings closed pursuant to NRS 241.030 become public records whenever the public body determines that the matters discussed no longer require confidentiality and the person whose character, conduct, competence, or health was discussed has consented to their disclosure. NRS 241.035(2)(a)-(c). Under NRS 241.033(6) the subject person is always entitled to a copy of the minutes of the closed session upon request, whether or not they ever become public records. In Davis v. Churchill County Sch. Bd. of Trustees, 616 F. Supp. 1310, 1314 (D. Nev. 1985), the court suggested that a student who was the subject of closed hearings may release “any information he or she chooses,” which presumably includes minutes or tapes of closed sessions. …. Recordings of closed sessions made by public bodies must also be retained for at least one year but are given the same protection from public disclosure as minutes of closed sessions set out in NRS 241.035(2). The tapes must be made available to the subject of the closed session, and under NRS 241.035(5), must also be made available to the Office of the Attorney General upon request.
Executive session: Requires announcement of topic for discussion, citation to authorizing law, and a two-thirds vote of the members present. Discussions held in an executive session must be electronically recorded. No record or electronic recording is required to be kept of the portion of a discussion in executive session that constitutes a privileged attorney-client communication.
The Executive Session Record The Open Meetings Law requires that executive sessions be electronically recorded. The executive session record must be retained for at least ninety days following the date of the executive session. The record may then be disposed of, as other government records, consistent with the local government’s records retention policy. The requirement that a record be made of the executive session is solely to permit policing of the requirements that discussion in an executive session focus solely on the matters(s) for which the session is called and that the session be used for deliberation only, rather than for decision making. Thus, the Open Meetings Law provides that the executive session record is not a public record and may only be reviewed by a judge, following certain preliminary showings, to determine if the body stayed substantially “on topic” and did not engage in unlawful decision making.
Iowa Open Meetings Law
4. A governmental body shall keep detailed minutes of all discussion, persons present, and action occurring at a closed session, and shall also audio record all of the closed session. The detailed minutes and audio recording of a closed session shall be sealed and shall not be public records open to public inspection. However, upon order of the court in an action to enforce this chapter, the detailed minutes and audio recording shall be unsealed and examined by the court in camera. The court shall then determine what part, if any, of the minutes should be disclosed to the party seeking enforcement of this chapter for use in that enforcement proceeding. In determining whether any portion of the minutes or recording shall be disclosed to such a party for this purpose, the court shall weigh the prejudicial effects to the public interest of the disclosure of any portion of the minutes or recording in question, against its probative value as evidence in an enforcement proceeding. After such a determination, the court may permit inspection and use of all or portions of the detailed minutes and audio recording by the party seeking enforcement of this chapter. A governmental body shall keep the detailed minutes and audio recording of any closed session for a period of at least one year from the date of that meeting, except as otherwise required by law.
“j. To discuss the purchase or sale of particular real estate only where premature disclosure could be reasonably expected to increase the price the governmental body would have to pay for that property or reduce the price the governmental body would receive for that property. The minutes and the audio recording of a session closed under this paragraph shall be available for public examination when the transaction discussed is completed.” A meeting may be closed under exemption (j) only when public discussion of the possible purchase or sale of particular real estate could be reasonably expected to increase the price demanded of that property or decrease the amount the government would receive in a sale. The economic public interest that this exemption is intended to serve is clear. The exemption does not allow closed sessions for discussion of real estate in general. If a session is closed under this exemption, the records of that closed meeting must be made available for public examination when the transaction is completed or canceled. Under Chapter 21.5(4) the minutes and tape recording of any closed session must be kept at least one year. If more than a year should elapse between a meeting closed under Chapter 21.5(1)(j) and the completion of the real-estate transaction, the record of that closed session should be kept for a reasonable time after the completion of the transaction so it can be available for public examination.