Legal Corner: Supreme Court decision raises questions about executive session practices

The Colorado Open Meetings Law (OML) permits executive sessions because the public benefits from a governing body being able to receive and review some information confidentially. In some matters, the public has neither the right nor need to view or participate in these limited discussions of elected representatives. The substantive deliberations and formal decision-making ultimately will be public. 

The Colorado Supreme Court reflected that understanding in its recent ruling in Sentinel Colorado v. Rodriguez, when it confirmed that the attorney-client privilege can protect communications between a body and its attorney in executive session. In that case, the Court held that the privilege was not waived by the disclosure of non-privileged information about the executive session.  

But the Sentinel Colorado decision may have raised more questions than it answered. Because the public can view executive sessions as suspicious “secret meetings,” properly convening and conducting executive sessions is essential to ensuring the municipal public is benefiting from the confidentiality of executive sessions. 

Calling the executive session 

An error in the call of the executive session laid the groundwork for the Sentinel Colorado decision. Executive sessions must be for one of the limited purposes listed in the OML; stretching those boundaries is a risky tactic. A board can enter executive session even if it isn’t on the agenda, but the sessions should be noticed if planned or expected. The session must be recorded unless it includes attorney-client privileged communications.  

The motion to enter executive session is a critical component. The motion must include the specific statutory citation and a description of the matters to be discussed without compromising the purpose of the session. Reciting the statutory purpose alone is rarely sufficient, if ever. 

An executive session motion can protect confidentiality and advise the public simultaneously. There are good reasons for an abbreviated, vague description, but there is often little harm in offering the public more information. For example, early in the stages of purchasing a piece of property, the motion may indicate that the session is to discuss the purchase of real property for a particular purpose, but advertising a desire to purchase a specific property could lead to competition that would frustrate the government’s purchase or to speculation that could increase the purchase price. Once the property is identified and negotiations are underway, future sessions could identify the property specifically. 

Remember that an executive session can have multiple bases under the OML. Properly citing and providing the basis for each purpose is important. For example, a session to discuss the purchase or sale of real property can be paired with a purpose of determining positions or strategy for negotiations of that property. A session regarding potential or ongoing litigation and settlement should be described using both the negotiation and legal advice purposes. 

Presence of third parties  

During oral argument, the Sentinel’s counsel asserted that a lawyer for an individual councilmember was present in the executive session, thereby waiving any privilege. The Court did not address this claim. If the third-party attorney who didn’t represent the governing body actually had been present, would that have undermined the municipality’s claim of privilege or compliance with the OML? 

The OML is silent with respect to the presence of third parties. Because executive sessions offer a board a chance to discuss matters confidentially, the inclusion of third parties beyond necessary staff, attorneys, and consultants of the municipality can weaken arguments about a need for confidentiality. Until courts decide this issue, a safer practice is to limit the executive session to the governing body and its agents. Staff or a delegated member of the body can bring necessary information to the executive session.  

Some practitioners contend that the presence of third parties can be justified in limited circumstances, such as when two governing bodies meet jointly to discuss an authorized topic in which they have a common interest. Others allow a third party, as part of a negotiation process, to present confidential information to the body but then leave the executive session before any discussion occurs. 

If a third party must be there, remember that a third party’s presence can waive a common law privilege (like the attorney-client privilege). The third party’s presence also should be limited to the purpose of the executive session. The record should clearly reflect the duration of their presence and the justification. 

Adverse board members 

Sometimes board members may have interests in the subject of an executive session that conflict with those of the municipality. These could be things like a financial conflict of interest (e.g., an ownership interest in a business negotiating a city contract), a personal conflict of interest (e.g., receiving legal advice on a question of the member’s conduct), or, in rare cases (as in Sentinel Colorado), real or potential legal claims against the municipality. Does such a member’s presence affect the validity of the executive session or a claim of privilege? Can the member attend the executive session without violating conflict of interest or ethical rules? 

Again, the OML does not address board members’ attendance at executive sessions where there is such a conflict. Arguably, all members of the governing body have some basis to attend an executive session of that governing body. A board member with a conflict, however, likely should not attend the executive session and should not have access to confidential materials. Hopefully, members voluntarily recuse themselves from the session when appropriate.  

Compelling legal reasons exist for excluding the member in these situations. The member’s presence could impair claims that confidentiality was important. The member’s access to confidential information could actually injure the municipality. If the member is adverse to the municipality in a legal sense, allowing that person in the executive session could be viewed as a waiver of the attorney-client privilege. The member could also be violating their fiduciary duty to the organization.  

The OML’s silence on this issue leaves a gap for local rules to address the problem. Municipalities should establish clear protocols for when board members must be excluded from executive sessions to avoid confusion, disputes, a loss of privilege, and ethical traps.
  

Confidentiality 

The Sentinel Colorado case ultimately held that meeting agenda materials describing nonprivileged facts about the executive session did not waive any attorney-client privilege applicable to the session. These disclosed facts included the factual claim information, procedural information, and the fact of direction to counsel to negotiate a settlement. 

But what if the letter included in a meeting packet by staff had contained privileged communications that the body’s attorney had provided to the body? What if a member of the body disclosed privileged communications without authorization?  

As a general rule, common law privileges are only waivable by the holder of the privilege. For a privilege held by a governing body, presumably this means by formal action of the governing body. Inadvertent disclosure of records by an authorized person carrying out their delegated functions may also result in a waiver.  

Ensuring control of executive session materials is critically important. Maintaining confidentiality of information is within a board member’s fiduciary duty to the organization. Still, local standards can protect privileges by requiring the collection of materials after executive sessions and reminding members of their obligations. Staff members who prepare and compile meeting materials must be careful not to include privileged material in packets.  

Consequences 

No discussion of the OML is complete without mentioning the potential consequences of violations: the invalidation of decisions, attorney’s fees and costs, and the potential disclosure of executive session records. Unlike other OML errors, an executive session violation may not be curable in a way that avoids these outcomes. 

Most importantly, an OML violation causes the public to lose trust in executive sessions and local government both in your community and beyond. Traditional and social media coverage and rumors spread widely to feed a broader narrative that executive sessions are “secret meetings” that hide decision-making. By properly explaining why an executive session is needed and using the session properly, municipalities can preserve public trust and improve confidence in their leadership.