Hollis Select Board Transparency Archive

001d01dcfdabd878266089687320

FW: Executive Session rules

From

• Richard Morin <[email protected]>

To

• Mike Harnois <[email protected]>

Date

Tue, Jun 16, 2026 · 12:19 p.m. ET

• Maine FOAA Executive Sessions personnel matters not enough.pdfNot posted

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  MAINE FOAA EXECUTIVE SESSIONS: WHY "PERSONNEL MATTERS" MAY NOT BE SPECIFIC ENOUGH Issue When a public body enters executive session under the Maine Freedom of Access Act (FOAA), simply stating that the reason is "personnel matters" may not provide sufficient information to the public regarding the basis for excluding the public from the discussion. Maine FOAA Requirements Under 1 M.R.S. §405, a public body must vote in public before entering executive session and must identify the statutory authority authorizing the closed session. The purpose of this requirement is to allow the public to understand: Why the public is being excluded from the discussion; Which statutory exception is being relied upon; Whether the executive session appears to be authorized by law. Why "Personnel Matters" May Be Inadequate The phrase "personnel matters" is extremely broad and can encompass many different topics, some of which may qualify for executive session and some of which may not. Examples include: Potentially Proper Executive Session Topics Performance evaluation of a Town Manager; Investigation of a complaint against a specific employee; Discussion of employee discipline; Consideration of a resignation; Hiring or appointment of an individual. Topics That May Not Qualify Department-wide staffing plans; Organizational restructuring; Budget reductions affecting multiple employees; General employment policies; Discussions of municipal operations unrelated to an individual's privacy or reputation. • • • • • • • • • • • • • 1

  Because the phrase "personnel matters" does not identify which of these subjects is being discussed, it may not provide the public with enough information to evaluate whether the executive session is lawful. Examples Vague Motion "I move that the Board enter executive session to discuss personnel matters." Better Motion "I move that the Board enter executive session pursuant to 1 M.R.S. §405(6)(A) to discuss the performance evaluation of the Town Manager." Another Acceptable Example "I move that the Board enter executive session pursuant to 1 M.R.S. §405(6)(A) to discuss a complaint involving a municipal employee." These examples inform the public of the nature of the discussion without revealing confidential details. Questions a Citizen May Ask If a board enters executive session for "personnel matters," citizens may reasonably ask: What subsection of 1 M.R.S. §405(6) is being relied upon? What type of personnel matter is being discussed? Does the matter involve an individual's privacy or reputation? Could the discussion instead involve policy, budgeting, or organizational issues that should occur in public? Conclusion While Maine law does not require disclosure of confidential details, the public body should provide enough information for the public to understand the general nature of the executive session and the statutory basis for closing the meeting. A statement that merely references "personnel matters" may be vulnerable to challenge if it does not adequately inform the public of the reason for the executive session. 1. 2. 3. 4. 2

• Maine_Executive_Session_Personnelmatters_Law.docxOpen original

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  Maine Laws Regarding Public Bodies Holding Executive Sessions for Personnel Matters In Maine, public bodies (including select boards, planning boards, school boards, and municipal committees) may meet in executive session for personnel matters, but only under very specific conditions set out in the Maine Freedom of Access Act (FOAA), 1 M.R.S. §405.When a Personnel Executive Session Is AllowedA public body may enter executive session to discuss:• Employment or hiring of an individual• Appointment or assignment of duties• Promotion or demotion• Compensation• Performance evaluations• Discipline• Resignation• Dismissal• Investigation of complaints or charges against an employee or officialHowever, the discussion may be closed only if public discussion could reasonably be expected to:1. Damage the individual's reputation, or2. Violate the individual's privacy rights.Required ProcedureBefore entering executive session, the board must:1. Be in a properly noticed public meeting.2. Make a motion stating the precise reason for the executive session.3. Cite the statutory authority (typically 1 M.R.S. §405(6)(A)).4. Obtain a recorded vote of at least 3/5 of the members present and voting.Example motion:"I move that the Board enter executive session pursuant to 1 M.R.S. §405(6)(A) to discuss the performance evaluation of the Town Manager."Important LimitationsA board cannot:• Use executive session to discuss matters unrelated to the stated purpose.• Take final action, vote, or make a binding decision in executive session.• Use executive session simply because a topic is uncomfortable or controversial.Any final vote to hire, fire, appoint, or otherwise act must occur in open session.Rights of the Employee or OfficialIf the executive session involves charges or complaints against a person:• The person being investigated has the right to attend the executive session if they wish.• The person may request in writing that the matter be heard in open session, and the board must honor that request.• Anyone making the allegations must also be allowed to attend.Common Violations Seen in Municipal GovernmentExamples may include:• Discussing a town-wide staffing reorganization in executive session when no individual's privacy is at stake.• Discussing budget reductions affecting employees as a group rather than evaluating specific individuals.• Voting in executive session to terminate an employee.• Entering executive session under "personnel" and then discussing unrelated town business.For a Maine Select BoardA select board may generally meet in executive session to evaluate or discuss the performance, discipline, compensation, resignation, or possible dismissal of a Town Manager, Code Enforcement Officer, Road Commissioner, or other municipal employee if the privacy/reputation standard is met. The board must return to open session before taking any official action.

• Maine_Executive_Sessions_outsidePublic_Meeting_Guide.pdfNot posted

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  MAINE FOAA: MUST AN EXECUTIVE SESSION OCCUR WITHIN A PUBLIC MEETING? Short Answer Yes. Under Maine's Freedom of Access Act (FOAA), an executive session is not a separate meeting. It is a portion of an open public meeting from which the public is temporarily excluded for a lawful purpose authorized by 1 M.R.S. §405(6). Required Sequence 1. Public meeting is called to order. 2. A motion is made to enter executive session. 3. The motion cites the applicable statutory authority. 4. The board votes (3/5 vote required). 5. Executive session is conducted. 6. The board returns to open session. 7. Any official action is taken in open session. Can an Executive Session Occur Before the Regular Meeting? Yes, provided the public meeting has first been convened. A posted agenda may schedule an executive session before the main business portion of the meeting, but the board must first open the meeting, make the motion, cite the statutory authority, and vote to enter executive session. Example of a Properly Structured Agenda 5:30 PM – Meeting called to order. 5:31 PM – Executive Session pursuant to 1 M.R.S. §405(6)(A). 6:00 PM – Regular Select Board business. Potential FOAA Concern If the minutes indicate that an executive session occurred before the meeting was called to order, or if the board met privately before convening the public meeting and without the required motion and vote, the legality of the executive session may be subject to challenge under Maine FOAA. Key Point An executive session is part of a public meeting, not a substitute for one. The public meeting must be convened before the board may lawfully enter executive session.

• Maine_FOAA_Executive_Session_Reference_Manual.pdfNot posted

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  Maine FOAA Executive Session Reference Manual Board-Ready Reference Guide Complete Text Summary of 1 M.R.S. §405 §405 provides that executive sessions may not be used to defeat FOAA; no final action may be approved in executive session; executive sessions require a public recorded 3/5 vote; the motion must state the precise nature of the business and cite authority; discussion is limited to the matters identified in the motion; and only specific categories of deliberations listed in §405(6) may occur in executive session, including certain personnel, legal, real-estate, confidential-record, security, and economic-development matters. Personnel Matters – §405(6)(A) Executive sessions concerning employment, appointment, assignment, duties, promotion, demotion, compensation, evaluation, discipline, resignation, dismissal, or investigation of complaints are permitted only where public discussion could damage reputation or violate privacy. Persons charged or investigated have attendance and open-session rights. Budget discussions are not covered by this exception. Maine Attorney General FOAA Guidance The Attorney General's FOAA guidance emphasizes that executive sessions are limited exceptions to Maine's open-meeting requirements. Public bodies must conduct a public vote before entering executive session, may discuss only authorized subjects, and may not take final action behind closed doors. Citizens may challenge improper executive-session activity in Superior Court. Maine Municipal Association Guidance MMA guidance generally advises municipalities to use executive sessions narrowly, clearly state the statutory basis in motions, keep discussions within the announced purpose, and return to open session before taking any action. MMA materials routinely caution against using 'personnel matters' as a catch-all justification for closing a meeting. Case Law: Blethen Maine Newspapers v. Portland School Committee (2008 ME 69) The Maine Supreme Judicial Court examined whether portions of a school committee executive session violated FOAA. The case highlights the importance of fitting discussions within an authorized executive-session category and demonstrates that courts closely review whether records and discussions qualify for protection. Enforcement and Challenges Under 1 M.R.S. §409, any person may seek relief in Maine Superior Court for alleged FOAA violations. Courts may declare actions void, order compliance, and in some circumstances award attorney fees.

• Maine_FOAA_Guide.pdfNot posted

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  MAINE FOAA EXECUTIVE SESSION COMPLIANCE CHECKLIST & CHALLENGE GUIDE Full Version with Detailed Statutory Citations to 1 M.R.S. §405 Purpose This guide is intended to help Maine residents evaluate whether a municipal board, committee, commission, school board, or select board complied with the Maine Freedom of Access Act (FOAA) when entering and conducting an executive session. 1 M.R.S. §405(1) — Executive Sessions May Not Defeat FOAA An executive session may not be used to defeat the purposes of Maine's Freedom of Access Act. Compliance Question: Was the executive session used only for a lawful purpose? Red Flag: A board enters executive session to avoid public scrutiny or discussion of controversial public business. 1 M.R.S. §405(2) — No Final Action in Executive Session No ordinance, order, rule, resolution, regulation, contract, appointment, or other official action may be finally approved in executive session. Compliance Question: Did the board return to open session before taking final action? Red Flag: The board effectively makes a decision behind closed doors and merely ratifies it in public. 1 M.R.S. §405(3) — Public Recorded Vote Required An executive session may be called only by a public, recorded vote of three-fifths (3/5) of the members present and voting. Compliance Questions: Was a motion made in public? Was the vote recorded? Did at least 3/5 of members present vote in favor? Red Flag: Minutes contain no vote tally or no record that a vote occurred. 1 M.R.S. §405(4) — Motion Must State Precise Nature of Business A motion to enter executive session must indicate the precise nature of the business and cite the statutory authority permitting the executive session. Example of a better motion: 'I move that the Board enter executive session pursuant to 1 M.R.S. §405(6)(A) to discuss the performance evaluation of the Town Manager.' Example of a potentially deficient motion: 'I move that the Board enter executive session for personnel matters.' Red Flag: The motion is so vague that the public cannot determine why the meeting is being closed. 1 M.R.S. §405(5) — Discussion Must Stay Within the Motion Matters other than those identified in the motion may not be considered during that executive session. Compliance Question: Did the board discuss only the topic identified in the motion? Red Flag: The board enters executive session for a personnel evaluation and discusses unrelated town business.

  Personnel Executive Sessions — 1 M.R.S. §405(6)(A) Executive sessions for personnel matters are permitted only for employment, appointment, assignment, duties, promotion, demotion, compensation, evaluation, discipline, resignation, dismissal, or investigation of charges or complaints. Public discussion must reasonably be expected to damage the individual's reputation or violate privacy rights. This paragraph does not apply to discussion of a budget or budget proposal. Compliance Questions: Was a specific individual being discussed? Was privacy or reputation genuinely implicated? Was the discussion actually about personnel and not policy? Red Flags include department reorganizations, budget reductions, staffing plans, or governance discussions. Rights of Persons Being Discussed A person who is the subject of charges or complaints may attend if desired, may request in writing that the matter be discussed publicly, and persons bringing charges or complaints must be permitted to attend. Executive Session Checklist Before Entering: Meeting properly noticed; public meeting called to order; motion made in open session; statutory citation provided; motion described the business; 3/5 vote recorded. During Executive Session: Discussion remained within the motion; no final action taken; only authorized persons present. After Executive Session: Board returned to open session; final vote occurred publicly; minutes reflect entry and exit from executive session. How to Challenge a Suspected FOAA Violation Obtain agendas, minutes, recordings, motions, vote tallies, and executive-session records. Compare the facts to §405. Ask whether the motion was sufficiently specific, whether the correct statutory authority was cited, whether discussion stayed within scope, and whether final action occurred in executive session. Raise concerns publicly and, if necessary, seek relief under 1 M.R.S. §409 in Maine Superior Court. Practical Review Standard If minutes simply state 'Executive Session — Personnel Matters,' ask: What subsection of §405(6) was cited? What specific personnel matter was involved? Was an individual's privacy actually at stake? Was the discussion limited to that issue? Were any decisions made behind closed doors? If these questions cannot be answered from the public record, further inquiry may be warranted.