How should an Idaho governing body interpret the Open Meetings Act's hiring exception, and what should it do if an executive session 'drifts' from its stated purpose?

Plain-English summary

Idaho State Senator Kate Kelly asked the Attorney General three connected questions about the Idaho Open Meetings Act (OMA) at Idaho Code §§ 67-2340 et seq.: should the executive-session exceptions be read narrowly, what does the hiring exception in § 67-2345(1)(a) actually cover, and what should a governing body do when an executive session strays from the stated reason for going behind closed doors?

The AG answered all three with a strong pro-openness emphasis. First, the OMA's preamble at § 67-2340 declares that "the formation of public policy is public business and shall not be conducted in secret," which signals that all doubts should be resolved in favor of openness. Statutes designed to protect the public are entitled to broad interpretation, and the Idaho Public Records Act provides a parallel: under Cowles Pub. Co. v. Kootenai County Bd. of Comm'rs (2007), all PRA exemptions are narrowly construed, and the same rule applies to OMA exceptions.

Second, the hiring exception at § 67-2345(1)(a) lets a governing body go into executive session "to consider hiring a public officer, employee, staff member or individual agent." The AG read this narrowly. The statute talks about "a" public officer, employee, staff member, or individual agent, which signals the singular: the exception covers consideration of a specific person being considered for a specific position. It does not cover general discussions about whether to fill staff vacancies, whether the budget can support new positions, or other tangentially related staffing topics. Those general discussions must happen in open session.

Third, when discussion in an executive session drifts off-topic (for example, when a hiring discussion morphs into a general budget conversation), corrective action must happen immediately. The body should either bring the discussion back into the proper executive-session purpose or open the session and continue the off-topic discussion in public. The opinion recommends that a governing body have its attorney sit in on executive sessions as an observer (the discussion stays attorney-client privileged) so the attorney can spot drift, advise on the narrow scope of the exception, and walk the body through prompt correction.

Even if the body takes immediate corrective action, an OMA violation has technically occurred, but immediate correction makes it much harder to prove the violation was "knowing" (which would carry stiffer remedies under § 67-2347). For more serious violations (executive sessions that did not fit any exception at all, or scripted-outcome zoning decisions), the body may need to redo the meeting de novo, after acknowledging and addressing the violation.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is the Idaho Open Meetings Act?

A 1974 statute that requires meetings of governmental bodies in Idaho to be open to the public, with limited specified exceptions for executive (closed-door) sessions. The Act starts at Idaho Code § 67-2340 and was significantly updated over time. The Attorney General's office publishes an annual Open Meeting Law Manual whose central advice has long been: "If in doubt, open the meeting."

What is an "executive session"?

A portion of a public meeting that takes place behind closed doors, with only the governing body and authorized attendees present. Idaho Code § 67-2345 lists the specific subjects that can be discussed in executive session, including hiring decisions, real-property acquisition, certain personnel performance issues, pending litigation, and a few others. A body has to publicly state which exception applies before going into executive session.

Why does the AG say to interpret the exceptions narrowly?

Because the OMA's whole purpose is openness. The preamble says public-policy formation "shall not be conducted in secret." When a statute is designed to protect the public, it gets a broad reading; its exceptions get a narrow one. The AG's answer pulls in parallel reasoning from the Public Records Act, where Cowles Pub. Co. v. Kootenai County Bd. of County Comm'rs (2007) and Magic Valley Newspapers v. Magic Valley Reg'l Med. Ctr. (2002) hold that all PRA exemptions are narrowly construed and any record not obviously exempt should be disclosed.

What can a governing body actually discuss in an executive session under the hiring exception?

Specific personnel issues regarding a specific person or a specific position. Examples: interviewing a finalist for an open department-head job, debating the qualifications of three candidates for a specific open seat, considering whether to make an offer to a particular applicant. Examples that are NOT covered: whether the city has enough money to fill three vacancies, whether the policy on hiring should change, whether a particular department has enough staff. Those are general staffing discussions and have to be public.

Why does the AG recommend having the attorney in the room?

Because attorneys are good at spotting when a discussion has wandered off the stated purpose, and the attorney-client privilege keeps the executive session's confidence intact even with the attorney present. The attorney can advise the body in real time to bring the discussion back, or to open up the session and continue in public.

What happens if a violation is discovered after the fact?

The Idaho Supreme Court in State v. City of Hailey (1981) and Baker v. Indep. Sch. Dist. of Emmett (1984) recognized that a properly noticed and conducted later meeting can cure an earlier OMA violation, as long as the later meeting includes substantial reconsideration. The AG cites a substantial body of case law from other states reaching the same conclusion. So the practical answer is: re-do the deliberation in open session and re-vote.

Are there harsher remedies?

Yes. Idaho Code § 67-2347 lets a court void a decision reached through an OMA violation. Knowing violations carry penalties. The opinion recommends that even after corrective action, the body should not assume it is in the clear; the violation still happened, and the practical question is whether it can be cured before a complaint forces the issue.

Background and statutory framework

The Idaho Open Meetings Act at Idaho Code §§ 67-2340 et seq. governs all "governing bodies" in Idaho, defined broadly to include state agencies, boards, commissions, school districts, cities, counties, and similar entities. The Act's preamble declares that "the formation of public policy is public business and shall not be conducted in secret."

Section 67-2345 lists the specific exceptions under which a body can go into executive session. Subsection (1)(a), the hiring exception, lets the body consider "hiring a public officer, employee, staff member or individual agent." Other subsections allow executive sessions for considering complaints against an employee, evaluating performance, real-property acquisition, pending litigation, communications with legal counsel about pending or imminent litigation, and certain other narrowly defined topics.

Section 67-2347 sets remedies: void any action taken in violation, civil penalty for "knowing" violations, and attorney's fees in some circumstances.

The interpretive backdrop: where a statute is designed to protect the public, the AG cited cases like Bd. of Public Instruction of Broward County v. Doran (Fla. 1969) for the principle that the language must be construed in light of the legislative intent and is entitled to a broad interpretation. The Public Records Act parallel is articulated by Cowles Pub. Co. v. Kootenai County (2007) and Magic Valley Newspapers (2002), holding all exemptions are narrowly construed in favor of public access.

Curing prior violations: Idaho courts (State v. City of Hailey (1981); Baker v. Indep. Sch. Dist. of Emmett (1984)) and many other state courts (cited extensively in the opinion's footnote 20) have held that a later, properly noticed meeting that substantially reconsiders the matter can cure an earlier OMA violation.

Citations

Idaho Code: §§ 9-337 to 9-350; 67-2340; 67-2345; 67-2347.

Idaho cases: Baker v. Indep. Sch. Dist. of Emmett, No. 221, 107 Idaho 608, 691 P.2d 1223 (1984); Cowles Pub. Co. v. Kootenai County Bd. of County Comm'rs, 144 Idaho 259, 159 P.3d 896 (2007); Magic Valley Newspapers Inc. v. Magic Valley Reg'l Med. Ctr., 138 Idaho 143, 59 P.3d 314 (2002); State v. City of Hailey, 102 Idaho 511, 633 P.2d 576 (1981).

Other-jurisdiction cases extensively cited for narrow construction of executive-session exceptions and for cure-by-later-meeting analysis (selected): Town of Palm Beach v. Gradison (Fla. 1974); Tanner v. Town Council of East Greenwich (R.I. 2005); Miller v. City of Tacoma (Wash. 1999); Floyd County Bd. of Educ. v. Ratliff (Ky. 1997); San Diego Union v. City Council (Cal. Ct. App. 1983); plus the lengthy footnote 20 list of cure-by-later-meeting decisions from Alaska, Florida, Illinois, Indiana, Louisiana, Missouri, Ohio, South Carolina, South Dakota, and Washington.

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/Opinion08-03.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN

ATTORNEY GENERAL OPINION 08-3

To: The Honorable Kate Kelly
Idaho State Senator
P. O. Box 654
Boise, ID 83701

Per Request for Attorney General's Opinion

Dear Senator Kelly:

QUESTIONS PRESENTED

1. Should the executive session exceptions set forth in Idaho Code § 67-2345 be interpreted narrowly by governing boards and their attorneys?

2. What is the scope and appropriate interpretation of Idaho Code § 67-2345(1)(a)?

3. What is the appropriate method of taking corrective action, when the discussion in an executive session "drifts" from the session's stated purpose?

CONCLUSIONS

1. Yes, the executive session exceptions set forth in Idaho Code § 67-2345 should be interpreted narrowly in order to fulfill the broad public purpose of allowing citizens to observe their governments at work, as provided by the Idaho Open Meetings Act.

2. Consistent with the conclusion to Question 1, the appropriate interpretation of Idaho Code § 67-2345(1)(a) is narrow in scope. An executive session should only be entered into under § 67-2345(1)(a) to discuss specific hiring issues regarding a specific person or a specific position. Discussions should not be held on broad questions such as whether to generally fill vacancies or whether sufficient funds exist to fill a vacancy.

3. Corrective action should be taken immediately upon recognition of the fact that an executive session has "drifted" from its stated purpose. Governing bodies should implement an oversight mechanism, such as having their attorney attend the executive session as an observer to assist in preventing and recognizing "drift."

ANALYSIS

A. The Idaho Open Meetings Act's Executive Session Exceptions Should Be Interpreted Narrowly

In 1974 the Idaho Legislature adopted the current version of Idaho's Open Meetings Act ("OMA"). The OMA begins with a sweeping preamble:

The people of the state of Idaho in creating the instruments of government that serve them do not yield their sovereignty to the agencies so created. Therefore, the legislature finds and declares that it is the policy of this state that the formation of public policy is public business and shall not be conducted in secret.

This preamble indicates that all inferences regarding whether to open or close a meeting should be resolved in favor of openness. To effectuate the OMA's remedial and protective purpose, "these enactments should be broadly construed and interpreted in the light most favorable to public access."

The Public Records Act Provides Guidance for Interpreting the OMA. Under the Public Records Act, the presumption is that all public records are open to disclosure and all exemptions are narrowly construed. Cowles Pub. Co. v. Kootenai County Bd. of County Comm'rs, 144 Idaho 259, 264, 159 P.3d 896, 901 (2007). The same analysis is appropriate within the open meetings context. Both statutes share the same purpose, transparency and openness in government.

B. The Scope of the OMA's Hiring Exception Is Narrow

Idaho Code § 67-2345(1)(a) ("the Hiring Exception") provides that "[a]n executive session may be held . . . to consider hiring a public officer, employee, staff member or individual agent. This paragraph does not apply to filling a vacancy in an elective office."

The language of the Hiring Exception is consistent with a narrow interpretation of the provision, in that the Exception applies only to the consideration of the hiring of "a public officer, employee, staff member or individual agent." Notably, the language refers to the hiring of a single individual, not the general filling of multiple staff vacancies or a general hiring need. Applying the principle that the OMA should be interpreted in favor of openness, the Exception should be interpreted to apply only to discussions of specific personnel issues regarding a specific person or position. Tangentially related considerations, such as funding issues related to hiring, have not been included in the language of the Hiring Exception and are topics more appropriately discussed in open sessions.

The primary stated purpose of such an exception is "to avoid undue publicity and embarrassment to the affected employee," or, in this case, to the job applicant whose credentials are being discussed. The above-stated purposes are completely inapplicable to general discussions regarding multiple staff vacancies or funding issues that do not relate to a specific job applicant.

C. Corrective Action Should be Taken Immediately

During an executive session in which a governmental body is discussing matters falling under the Hiring Exception, the discussion may drift to inappropriate tangential matters, such as the overall number of vacancies or revenue projections necessary to sustain positions. A governmental body must be able to both recognize that these discussions are not appropriate within the executive session and to recognize that it must take immediate action to either return to the appropriate topic of discussion or to open the executive session to discuss in a public session those matters which are not the appropriate subject of the executive session.

The Idaho Supreme Court has tacitly endorsed this premise through its holdings with regard to executive sessions held in violation of the OMA. Where deliberations are conducted at a meeting that violates the Open Meetings Act, but no firm and final decision is rendered upon the questions discussed, the impropriety of that meeting will not taint final actions subsequently taken upon questions conscientiously considered at later meetings which do comply with the provisions of the Act. State v. City of Hailey, 102 Idaho 511, 514, 633 P.2d 576, 579 (1981); Baker v. Indep. Sch. Dist. of Emmett, No. 221, 107 Idaho 608, 611, 691 P.2d 1223, 1226 (1984).

Governmental entities should establish a procedure whereby they can both recognize and address open meeting violations. An entity can take several steps to facilitate compliance by consulting the entity's attorney in the executive session. During the executive session, the entity's attorney can:

1. Monitor the discussion;
2. Identify inappropriate departures from the exception under which the entity went into executive session;
3. Advise the entity to keep the discussion within the parameters of the exception under a narrow interpretation of its scope; and
4. Advise and assist the entity in the proper procedure to employ corrective action immediately.

Using the entity's attorney preserves the confidence of the executive session, because the discussions therein are protected by the attorney/client privilege, but it also allows the entity an impartial observer to "referee" the discussion and to prevent "drift" from occurring within the session. Taking immediate action ensures that no more than a sentence or two of "drift" occurs, and thereby preserves the spirit of the exception for the executive session.

It is worth noting that even if corrective action is taken, an open meeting violation has still occurred. But in the example above, since the entity has the violation brought to its attention and moves immediately to correct the violation, it will be difficult to prove a "knowing" violation of the OMA.

Violations of the OMA should be avoided whenever possible. If an entity is in doubt as to the propriety of an executive session, the doubt should be resolved in favor of openness. If a violation occurs, the entity should acknowledge the violation as soon as possible and take the appropriate steps to correct the violation, even if that means holding the entire meeting de novo and as if the prior improper meeting never occurred.

DATED this 8th day of September, 2008.

LAWRENCE G. WASDEN
Attorney General

Analysis by:
BRIAN KANE
KARIN JONES
Deputy Attorneys General