Closed meetings keep public in the dark — Attorney: Local boards not following letter of the law

Published 9:08 pm Tuesday, March 13, 2018

It happens just about every meeting.

A board member of a local government needs to have a private discussion — an executive session — about a sensitive issue. There are a few powerful words they use to close the door on the public and meet in secrecy.

“Economic development.”

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“Potential litigation.”

“Personnel issue.”

And they’re not wrong. Well, not entirely.

State law allows governing boards a few specific reasons to close down a meeting to the public to handle touchy matters. There are 14 such “exemptions” allowed under state law.

The Daily Leader — and the public — has been shut out of several executive sessions by city aldermen, county supervisors and the county school board in recent weeks.

Leonard Van Slyke, a media and First Amendment law attorney with Brunini Law, said local boards appear to be sidestepping the law’s requirements for specificity and structure by closing meetings on vague pronouncements, sometimes for questionable reasons, and ignoring executive session rules of order.

“A board can’t just say ‘personnel’ or ‘litigation.’ The Supreme Court has said it has to be specific, so that someone could later go back and see if it really is an appropriate reason to go into an executive session,” said Van Slyke. “They could say, ‘We have a personnel issue in the water department,’ something that would identify what they’re talking about. They don’t have to give a person’s name, obviously, but they have to narrow it down.”

In Lincoln County, that stipulation is rarely, if ever, followed. Lincoln County supervisors often close meetings for “potential litigation” and “personnel matters” without any further explanation, leaving the public to wonder who or what department may be facing a lawsuit and the reasons why.

On Monday, March 5, a county meeting was closed for a “personnel matter” without any hint of a problem. District 3 Supervisor Nolan Williamson requested the session and got it. District 4 Supervisor Eddie Brown supported closing the session, saying he knew what Williamson’s issue was, and soon enough everyone was forced out of the boardroom except Sheriff Steve Rushing, who remains in closed-door meetings to provide security to supervisors.

Whatever the reason was, it must have been a good one — county officials like the engineer, tax collector and others who are normally allowed to stay in executive sessions were sent out this time.

When the executive session ended, the meeting was over and no action was taken publicly.

The Lincoln County School Board also recently abused the Open Meetings Act’s exemption often referred to as “personnel,” which actually states: “Transaction of business and discussion of personnel matters relating to the job performance, character, professional competence, or physical or mental health of a person holding a specific position…”

The school board shut out the public on Feb. 27 to discuss Lincoln County Superintendent Mickey Myers’ job appraisal — but Myers is an independent elected official, not an employee who reports to the board.

Van Slyke said the executive session was inappropriate. School board attorney Jim Keith said the appraisal gave Myers high marks for the way he handled a situation with a district employee, and that was why the appraisal was done in secret. Van Slyke contends the executive session should have only discussed that employee, and the board’s performance review of Myers should have been done in public.

Anyway, there was nothing controversial about the appraisal — the board cheered Myers on.

Brookhaven aldermen are also stretching the boundaries of the Open Meetings Act.

During a Tuesday-night meeting March 6, the city board went into executive session out of order — announcing the reason why the meeting would be secret only after aldermen voted to shut the door — to admittedly discuss two topics in a single executive session, which is a legal no-no.

Mayor Joe Cox announced the closed-door session for “contract negotiations and potential litigation.” When the meeting was opened back up to the public, aldermen rehired development firm The Retail Coach and fired Waste Pro from debris pickup within the city.

City attorney Joe Fernald said the board held a two-for-one private meeting because Ward 3 Alderman Mary Wilson had to leave the meeting early on personal business and it was important she be apart of the Waste Pro discussion.

“We wanted her there for the contracts. Waste Pro was critical to her ward because people are complaining about garbage pickup,” Fernald explained. “We could stop, come out, go in, stop, come out, go back in — we did them both then reported out what we were going to do. I think, in essence, the spirit of the law was followed.”

Aldermen may have followed the spirit of the law, but they violated the letter.

The Open Meetings Act lays out the procedure — once an executive session has been declared, “no other business shall be transacted until the discussion of the nature of the matter requiring executive session has been completed and a vote… has been taken on the issue.”

“You can’t go back there with seven reasons,” Van Slyke said. “You have to come back out and vote for another reason if you need more than one executive session.”

The trials of Waste Pro in Lincoln County have been well documented by both the city and county boards, but The Retail Coach has been more mysterious.

Will Kline, the group’s director of retail strategy, has appeared at two board meetings this year accompanied by Lincoln County Economic Development Executive Director Garrick Combs — once before county supervisors in January and before city aldermen March 6. The group is seeking a new $20,000 contract with the city and county (aldermen approved their half on March 6 and supervisors have yet to act).

Both meetings — and several previous meetings — have been held in executive session at Combs’ request for “economic development.” Of course, there is no Open Meetings Act exemption for “economic development.” Exemption J (No. 10) allows meetings to be closed for “transaction of business and discussions or negotiations regarding the location, relocation or expansion of a business, medical service of industry.”

“If they’re going to talk about a particular business — ‘we’re negotiating with Walmart for a new store’ — that may be appropriate for executive session. But if they’re talking in general terms, ‘we’re going out there looking for companies and here’s our general approach,’ none of that stuff is appropriate for executive session,” Van Slyke said.

Just because The Retail Coach is in the business of recruiting business doesn’t mean every discussion with the group meets those strict requirements. Not even all the city and county leaders are convinced their own executive sessions with The Retail Coach have been appropriate.

“Last time, all they said was something about an eating joint on Brookway and a bunch of times we’ve been turned down,” Williamson said during the March 5 supervisors meeting, referring to The Retail Coach’s executive session in January.

Williamson’s “eating joint” was almost certainly Zaxby’s, an incoming restaurant announced last year. A team of local investors is responsible for bringing a Zaxby’s location to town, apparently without assistance from The Retail Coach.

Neither Zaxby’s nor a list of businesses that have refused the group’s recruiting efforts qualify as an acceptable reason for an executive session under the often-mislabeled “economic development” exemption of the Open Meetings Act.

Fernald said Combs and The Retail Coach got it right on March 6.

“We got a full report on prospects coming to town. You’ll have to take my word on that,” he said. “Some of them are companies planning to come to Brookhaven and do not want to give away a competitive edge to anyone else.”

As for the Open Meetings Act’s requirement for one executive session per justified exemption, Fernald questioned the way the law is written.

“It would definitely work if there was one business that was definitely coming to town and we knew that, but we had a number of businesses looking at coming to town. What do we do, have a session for every single one of them?” he said.

Even if the city board’s executive session with The Retail Coach was appropriate, some aldermen are wondering if they’re going into executive session too often.

“I text messaged an aldermen the other night and said, ‘why did we discuss that in executive session?’” said Alderman-at-Large Karen Sullivan. “It’s just like how the Legislature tries to get by with a lot of stuff sometimes.”

Sullivan said she often feels some of the city board’s closed-door meetings are inappropriate, but she’s afraid to vote against them.

“If they say it’s one of those subjects, what are you gonna do?” she said. “I’m all about doing it right.”

Ward 6 Alderman Shelley Harrigill said she also feels cornered when it comes to executive sessions.

“It seems like we’re going into executive session about the same thing a lot of times, but we’re not — it’s just the broad stroke topic that things fit under,” she said. “I’m new. I just sit there and let them tell me what I’m supposed to do.”

Harrigill said she and Ward 4 Alderman Jason Snider attended a continuing education course on the Open Meetings Act as part of their training from the Mississippi Municipal League when they were first elected.

She said the course taught many of the things Van Slyke preaches about specifically in declaring executive sessions, but the board does not follow the requirement to give specific reasons for closing a session to the public.

“When we go into executive session, I myself don’t know whose department we are going into. I don’t even know until they close the door. You feel like it’s one big fog,” she said. “But I’m not the city attorney, and he thinks we’re doing it right. I think it would behoove us to be more specific, so we can be as transparent as we’re capable of being.”