The first rule of executive sessions is you cannot talk about executive sessions.
Permitted by Wyoming Statute 16-4-405, executive sessions allow governing bodies to discuss specific topics in private and “proceedings of executive sessions shall be confidential and produced only in response to a valid court order,” the statute states.
While the secretive nature of these exclusive meetings can arouse questions of transparency, Mayor Andi Summerville said the meetings can aid the people they exclude.
“We could potentially conduct all our land negotiations in public,” Summerville said. “However, what benefit does the public get from that?”
The consideration of site selection or real estate where publicity regarding the consideration could increase the real estate price is one of 11 reasons listed in state statute for governing bodies to enter executive sessions.
“Very obviously, (the public) would get a detriment in potentially raised costs,” Summerville said. “We might lose donations for parks and rec land or whatever that might be. So, I think it’s a very fine balancing act, and you need to be very judicious in your use of executive session. And you need to make sure it’s absolutely necessary.”
Four months into 2018, the council deemed seven executive sessions “absolutely necessary,” which is a slight increase when compared to the same time frame in 2017. Throughout 2017, the council entered 25 executive sessions — more than doubling the 11 executive sessions hosted by council in 2016, according to the council’s meeting minutes.
“From my point of view, executive sessions at the city of Laramie are used very sparingly,” Summerville said. “I feel like we go above and beyond to make sure we’re doing everything we can in the view of the public.”
When the public’s business is increasingly discussed behind closed doors, Bruce Moats — an attorney specializing in media law and Wyoming’s open meetings act — said the public should ask why.
“I think it should always raise the question, ‘Is it necessary that we not know what is going on?’” Moats said. “Experience has taught me there is no real harm to us knowing more. I think (executive sessions) should be questioned more.”
Excluding the public from any discussion is optional, but Laramie City Attorney Bob Southard said some situations make open discussion difficult.
“If you have to be informed about litigation or potential litigation and talk about how to proceed, you don’t want to do that in public, because there’s somebody that is either suing you or may sue you,” Southard said. “Everybody wants to be transparent, but when you get a personnel issue, it’s pretty crystal clear that it’s a personnel issue.”
Summerville echoed Southard, saying the law requires governing bodies to talk about personnel in private, but Moats disagreed.
“The Wyoming Supreme Court (The Sheridan Press v. Sheridan School District No. 2) has very rightfully said the Public Records Act (which addresses personnel discussions) does not govern open meetings,” Moats said. “You can’t do an executive sessions based on the exceptions in the Public Records Act.”
W.S. 16-4-405 does not specifically use the word personnel, but it does allow governing bodies to privately discuss “the appointment, employment, right to practice or dismissal of a public officer, professional person or employee or to hear complaints or charges brought against an employee, professional person or officer.”
Governing bodies can also host an executive session “to consider accepting or tendering offers concerning wages, salaries, benefits and terms of employment during all negotiations.”
The council is responsible for three employees — the city attorney, municipal judge and city manager. In 2016, seven of the council’s 11 executive sessions were entered “regarding personnel,” city documents state. In 2017, 16 of the council’s 25 executive sessions used personnel as at least one of the reasons for meeting privately, according to city documents.
The city did not use personnel as a reason for any of the seven executive sessions hosted in 2018 as of April 17.
Apples to oranges
When compared to the Albany County Commission, the council’s number of executive sessions is high, but Albany County Attorney Peggy Trent said the two governing bodies cannot be fairly compared.
“Depending on the type of governing body and the type of structure, it may warrant more executive sessions,” Trent said. “The second factor depends on the makeup of that structure, because you may have a person who … may want more updates to the board.”
The commission entered two executive sessions in 2018 and 12 in 2017. But with only three members, Trent, who previously served as the Laramie city attorney, said there is a reduced need for private meetings.
Southard said the number of executive meetings hosted by a governing body in any given year is subject to circumstance.
“It simply varies as to how often those (executive session) topics come up,” he said. “If it’s a quiet year for gifts or litigation or national security issues, you’re going to have less executive sessions.”
One example of this fluctuation might be viewed by comparing the number of Laramie City Council executive sessions to the Casper City Council, a nine-member body structured similarly to Laramie’s City Council. In 2018, the Casper City Council hosted eight executive sessions as of April 17, according to Casper’s city documents. The Laramie City Council hosted seven as of April 17.
But in 2017, the Casper City Council hosted 15 executive sessions compared to the Laramie City Council’s 25.
Summerville and Southard said they did not think they individual members of a governing body influenced the frequency that body might enter an executive session, but Moats and Trent said they thought the opposite.
“I think the makeup definitely plays a role in the number of executive sessions a body goes into,” Moats said. “The personalities make a big difference in my mind.”
After comparing the Laramie City Council’s numbers to other governing bodies, Moats said the increasing number of meetings was disquieting, but there are few options for the public uncover the reason behind the trend.
“It certainly raises questions about why this is happening,” Moats said. “But you would have to look at each session on its own. It is concerning.”
The only way to determine whether a governing body discussed what it claimed during an executive session is by a valid court order, and Trent explained even then, the contents of the meeting would likely only be revealed to the judge.
In Wyoming, there is no process of review to ensure elected officials do not act out of the bounds of state statute during a private meeting, Moats said.
Southard said that task fell to the governing body’s attorney.
“Any attorney advising a governing body, who hears of a desire to do an executive session, then has to render an opinion of whether it falls into the acceptable areas,” he said. “That’s first role of an attorney. The second role is to attend the executive session and make sure the discussion is what was decided as the reason for the session.”
Trent said that second role was paramount to staying within the law.
“It’s not the intent of some of the members of a governing body to go off topic,” Trent said. “But when you put people together in a room, they’ll start talking just in general about anything. You just need to direct them that’s not an appropriate topic for the executive session.”
Summerville said the statute also allows members of the governing body to report incidents they believe to be in conflict with Wyoming’s Open Meetings Act.
“With the aid of the city attorney, we are a self-policing body in that matter,” she said. “The checks and balances are during the beginning a council member can object to an executive session … if they think the topic is straying, they can bring it up to the group, or they can leave … and bring that to the attention of the governing body publicly.”
During Summerville’s five years with the council, she said she was not aware of a member of council expressing concern about the reason for entering an executive session.
Without a review process, Moats said the public should often question the need for secrecy, and the governing bodies should respect the public’s right to know.
“In a way, (Summerville is) right in that the responsibility does fall on those in the executive session,” he said. “They should take that responsibility seriously. They’ve got to understand that through the executive session privilege, their conversations are prohibited from the public, and that feeds the critics, unnecessarily.”