Executive Sessions for Board Appointments?

Training for: Legal Notes

Question: Can our board use an executive session to interview and discuss candidates for appointment to various boards and committees, such as the planning board or board of appeals?

Answer: Yes. Although “personnel matters” usually entail employees and employment matters, the applicable provision under Maine’s Freedom of Access Act (FOAA) or “Right to Know” law captures both the hiring and appointment process (see 1 M.R.S.A. § 405(6)(A)). The statute authorizes an executive session for “[d]iscussion or consideration of the employment [or] appointment… of public officials, appointees or employees.” This language clearly contemplates both the hiring of employees and the appointment of officials or appointees. In our view it is also sufficient to authorize interviews with candidates in executive session as well as the evaluation of candidates without them being present.

As with employment matters, however, an executive session for appointment purposes is permissible only if public discussion could reasonably be expected to damage the individual’s reputation or violate their privacy (see 1 M.R.S.A. § 405(6)(A)(1)). A board should make this finding explicitly before entering into executive session, perhaps as part of the required motion (see 1 M.R.S.A. § 405(4)).

It also bears repeating that no appointment or hiring decision or any other official action by a board may be finally approved in executive session (see 1 M.R.S.A. § 405(2)). Any final decision must be made by a public vote of the board, either following the executive session or at a subsequent board meeting.

Finally, just as an executive session can be used for appointments, an executive session can also be used for the removal of appointees. (The statute uses the term “dismissal.”) In fact, since an appointee can only be removed for cause, after notice and hearing (see 30-A M.R.S.A. § 2601(1)), an executive session may well be the appropriate setting in most cases to conduct the hearing. Note, however, that the appointee may request in writing that the hearing be conducted in public, in which case the board is legally bound to honor it (see 1 M.R.S.A. § 405(6)(A)(3)). Also note (again) that no final decision may be made in executive session.

For what constitutes sufficient “cause” for the removal of appointees (and employees for that matter), see “‘For Cause’ Removal of Municipal Appointees,” Maine Townsman, Legal Notes, February 2000. (By R.P.F.)

Question: Can our board use an executive session to interview and discuss candidates for appointment to various boards and committees, such as the planning board or board of appeals?

Answer: Yes. Although “personnel matters” usually entail employees and employment matters, the applicable provision under Maine’s Freedom of Access Act (FOAA) or “Right to Know” law captures both the hiring and appointment process (see 1 M.R.S.A. § 405(6)(A)). The statute authorizes an executive session for “[d]iscussion or consideration of the employment [or] appointment… of public officials, appointees or employees.” This language clearly contemplates both the hiring of employees and the appointment of officials or appointees. In our view it is also sufficient to authorize interviews with candidates in executive session as well as the evaluation of candidates without them being present.

As with employment matters, however, an executive session for appointment purposes is permissible only if public discussion could reasonably be expected to damage the individual’s reputation or violate their privacy (see 1 M.R.S.A. § 405(6)(A)(1)). A board should make this finding explicitly before entering into executive session, perhaps as part of the required motion (see 1 M.R.S.A. § 405(4)).

It also bears repeating that no appointment or hiring decision or any other official action by a board may be finally approved in executive session (see 1 M.R.S.A. § 405(2)). Any final decision must be made by a public vote of the board, either following the executive session or at a subsequent board meeting.

Finally, just as an executive session can be used for appointments, an executive session can also be used for the removal of appointees. (The statute uses the term “dismissal.”) In fact, since an appointee can only be removed for cause, after notice and hearing (see 30-A M.R.S.A. § 2601(1)), an executive session may well be the appropriate setting in most cases to conduct the hearing. Note, however, that the appointee may request in writing that the hearing be conducted in public, in which case the board is legally bound to honor it (see 1 M.R.S.A. § 405(6)(A)(3)). Also note (again) that no final decision may be made in executive session.

For what constitutes sufficient “cause” for the removal of appointees (and employees for that matter), see “‘For Cause’ Removal of Municipal Appointees,” Maine Townsman, Legal Notes, February 2000. (By R.P.F.)