During the Pickens GOP debates a couple weeks ago, school board member candidates were asked about former superintendent Dr. Carlton Wilson’s termination and what they would have done differently. There were some variations in answers, but candidates generally pointed to the perceived and very incorrect belief that elected officials are not legally able to discuss things that happen during executive session - even after the action is complete.
School board candidates who do not currently hold office said they weren’t sure how to comment because they were unclear why Wilson was let go. Board members who were part of that decision-making process said they could not legally discuss personnel matters. It is true that personnel issues are one of a very few items elected officials can talk about behind closed doors. Others include pending litigation and property transaction issues.
Public officials may have been advised that they can’t discuss executive sessions, but we want to set the record straight for both established, new, and incoming leaders – it might not make you popular with fellow board members, but if you feel it is in the best interest of the public to know what happened, yes, you can discuss it.
David Hudson, longtime general counsel for the Georgia Press Association and a leading authority on the Georgia Open Meetings Act, addresses the issue in his article, “Officials Free to Speak Openly About What Happens in Closed Government Meetings,” which is published in its entirety on the facing page. Hudson doesn’t mince words when he says, “advice from someone (usually a lawyer representing the public entity)” that executive sessions can’t be discussed “…has no basis in fact or in law. Elected officials are subject only to the voters, and may not be disciplined or discharged from office by their fellow elected members.”
Hudson goes on to clear up a misunderstanding about a Georgia Code (O.C.G.A. 45-10-3) that establishes ethics standards for boards, commissions, and authorities. “It has provisions against the use of undisclosed public information for private gain,” but, “…None of its various provisions, however, would prevent elected or appointed officials from disclosing what occurred in a closed session if the official felt that it was in the public interest to make the disclosure.”
He cites other Georgia Code as well as the “overriding constitutional principal for public service in Georgia” from the Georgia Constitution and concludes that, “There is no prohibition in Georgia law that would prevent such disclosure…The officer may create ill will with other members of the public agency, but that is a factor that the public officer will have to weigh against what he or she feels is an overriding duty to the public that he or she serves.”
In a recent email to Hudson regarding the issue, he reiterated that elected officials retain their First Amendment right to discuss executive session issues. He did note, however, that there is no way to force a board member to reveal discussions in a legally-closed meeting other than to press them about situations (such as the termination of Pickens’ former superintendent) in which there is compelling public interest.
Additionally, it’s important to note that Georgia law allows for - but does not require - executive sessions only under those very strict parameters of discussing personnel, real estate transactions, and litigation. A Covington News article explains that executive sessions are allowed under those circumstances, “if they feel public discussion would harm the public’s interest. Two examples would be discussing legal strategy in a pending lawsuit, or discussing how much a government is willing to pay for land before a formal offer is finalized.”
Elected officials, from this point on you can’t hide behind the “we can’t discuss executive sessions” argument. We can’t force you to talk, but legally you are able to if you feel it is in the public’s best interest.