Executive session in Vermont: when a board can meet in private, and what follows
Short answer
A Vermont board may hold an executive session only for a purpose the Open Meeting Law lists. It goes in only by a majority vote of the members present, taken in an open meeting and recorded in the minutes, on a motion stating the nature of the business, and it is concluded only by a majority vote of the members present. Nothing else is considered inside, and no formal or binding action is taken except on securing real estate options.(1 V.S.A. § 313(a); 1 V.S.A. § 313(a))
Where this fits in your meeting cycle: Clarivis is software that helps a board follow these steps: it counts each agenda's posting deadline and the minutes deadline, records the posting with its link on the municipal website (as Clarivis reads the law, the board's website when it has none of its own), flags an executive session item until a Statutory basis is selected, and drafts the minutes for your board to correct and approve; it does not post the agenda or tell a newspaper or radio station for you, and it does not check the duties to post a recording of the meeting, the remote-attendance rules or the yearly training.
See how Clarivis helpsQuestions on this page
Vermont's law calls it an executive session. The rest of the meeting is open to the public.
When can a board go into executive session?
Only for a purpose the law lists:
Statute text
“A public body may not hold an executive session except to consider one or more of the following:”
Each purpose below is given by its Statutory basis name in Clarivis, then in the law's own words, which govern. A Statutory basis name may shorten those words; the full words below decide what the purpose covers.
Subdivision (1): contracts, labor relations agreements, arbitration or mediation, grievances, litigation, attorney-client communications
Statutory basis names:
- Contracts
- Labor relations agreements with employees
- Arbitration or mediation
- Grievances, other than tax grievances
- Pending or probable civil litigation or a prosecution, to which the public body is or may be a party
- Confidential attorney-client communications for providing professional legal services to the body
For each, the board first makes a specific finding that premature general public knowledge would clearly place the public body or a person involved at a substantial disadvantage.
Statute text
“(1) after making a specific finding that premature general public knowledge would clearly place the public body or a person involved at a substantial disadvantage: (A) contracts; (B) labor relations agreements with employees; (C) arbitration or mediation; (D) grievances, other than tax grievances; (E) pending or probable civil litigation or a prosecution, to which the public body is or may be a party; (F) confidential attorney-client communications made for the purpose of providing professional legal services to the body;”
Subdivision (2): real estate options
Statutory basis name: The negotiating or securing of real estate purchase or lease options. This is the one purpose under which formal or binding action may be taken inside, and only for actions relating to securing real estate options.
Statute text
“(2) the negotiating or securing of real estate purchase or lease options;”
Subdivision (3): appointment, employment or evaluation
Statutory basis name: The appointment or employment or evaluation of a public officer or employee. A final decision to hire or appoint a public officer or employee is made in an open meeting, and the reasons for it are explained there.
Statute text
“(3) the appointment or employment or evaluation of a public officer or employee, provided that the public body shall make a final decision to hire or appoint a public officer or employee in an open meeting and shall explain the reasons for its final decision during the open meeting;”
Subdivision (4): discipline or dismissal
Statutory basis name: A disciplinary or dismissal action against a public officer or employee. This does not impair any right the officer or employee has to a public hearing if formal charges are brought.
Statute text
“(4) a disciplinary or dismissal action against a public officer or employee; but nothing in this subsection shall be construed to impair the right of such officer or employee to a public hearing if formal charges are brought;”
Subdivision (5): public safety
Statutory basis name: A clear and imminent peril to the public safety.
Statute text
“(5) a clear and imminent peril to the public safety;”
Subdivision (6): exempt records
Statutory basis name: Records exempt from the access to public records provisions of section 316 of this title. Discussing the exempt record does not by itself let the session extend to the general subject the record concerns.
Statute text
“(6) records exempt from the access to public records provisions of section 316 of this title; provided, however, that discussion of the exempt record shall not itself permit an extension of the executive session to the general subject to which the record pertains;”
Subdivision (7): students
Statutory basis name: The academic records or suspension or discipline of students.
Statute text
“(7) the academic records or suspension or discipline of students;”
Subdivision (10): security
Statutory basis name: Security, cybersecurity, or emergency response measures if disclosure could jeopardize public safety.
Statute text
“(10) security, cybersecurity, or emergency response measures, the disclosure of which could jeopardize public safety;”
Subdivisions (8), (9) and (11) cover the Parole Board, Medicaid pharmaceutical rebates and State lending bodies, not a municipal board, so Clarivis does not offer them. The list is closed: a matter that fits none of the purposes may not be considered in executive session.
How does a board go in?
By a majority vote of the members present:
Statute text
“No public body may hold or conclude an executive session from which the public is excluded, except by the affirmative vote of two-thirds of its members present in the case of any public body of State government or of a majority of its members present in the case of any public body of a municipality or other political subdivision.”
The motion states the nature of the business, and the vote is taken in the open meeting and recorded in the minutes:
Statute text
“A motion to go into executive session shall indicate the nature of the business of the executive session, and no other matter may be considered in the executive session. The vote to enter executive session shall be taken in the course of an open meeting and the result of the vote recorded in the minutes. No formal or binding action shall be taken in executive session except for actions relating to the securing of real estate options under subdivision (2) of this subsection. Minutes of an executive session need not be taken, but if they are, the minutes shall, notwithstanding subsection 312(b) of this title, be exempt from public copying and inspection under the Public Records Act.”
For a purpose under subdivision (1), the board makes its specific finding of substantial disadvantage before the executive session is held.
Who may attend?
Statute text
“Attendance in executive session shall be limited to members of the public body, and, in the discretion of the public body, its staff, clerical assistants and legal counsel, and persons who are subjects of the discussion or whose information is needed.”
What cannot happen in executive session?
No other business, and no formal or binding action, except actions relating to securing real estate options (§ 313(a)). Apart from that exception, a resolution, rule, regulation, appointment or other formal action is binding only when taken at the open meeting (§ 312(a)(1)), so any other decision is made in open session.
The law does not say where a vote to conclude an executive session is taken or recorded.
Does the meeting need an agenda?
Yes, for a regular or special meeting. When an executive session is an item on a posted agenda, it is listed in a set way:
Statute text
“Whenever a public body includes an executive session as an item on a posted meeting agenda, the public body shall list the agenda item as “proposed executive session” and indicate the nature of the business of the executive session.”
Unless it is an emergency meeting, a meeting called only to go into executive session is a special meeting, with its agenda posted and the special-meeting announcement and notices given at least 24 hours ahead; one held at the board's regular time and place is a regular meeting, with its agenda posted at least 48 hours ahead. See the meeting notice and agenda guide.
Are minutes kept?
Minutes of the executive session itself need not be taken, and any that are taken are exempt from public inspection and copying (§ 313(a)). The vote to go in is recorded in the open meeting's minutes. See the meeting minutes guide.
Checklist
Before the meeting
- The agenda lists the "proposed executive session" and the nature of its business.
Before going in
- The purpose is one the law lists.
- For contracts, labor relations agreements, arbitration or mediation, grievances, litigation or attorney-client communications: a specific finding that premature general public knowledge would clearly place the board or a person involved at a substantial disadvantage.
- A motion that states the nature of the business, and a majority vote of the members present, taken in the open meeting and recorded in the minutes.
Inside
- Only members, and at the board's choice its staff, clerical assistants, legal counsel and the people discussed or needed, attend.
- Only the business in the motion is considered.
- No formal or binding action, except actions relating to securing real estate options.
Afterwards
- Any decision, other than on securing real estate options, is made in open session; a final decision to hire or appoint is made there and its reasons explained.
What the law does not settle
These are questions to take to your municipal attorney; this guide does not answer them.
- Whether the vote to go in can also set when the session ends, or a separate vote is needed to end it, and where that vote is taken and recorded.
- Whether a particular matter fits one of the listed purposes.
- How detailed the specific finding of substantial disadvantage must be.
- Whether the specific finding must be stated in the open meeting and recorded in the minutes.
How Clarivis helps
Clarivis does not decide whether a matter may be considered in executive session; your board and its municipal attorney do.
- On the agenda, an executive session item is flagged until a Statutory basis is selected for it.
- During the meeting, the person recording selects Enter executive session and chooses its Statutory basis. Recording stops, and nothing is recorded until the board returns to open session.
- In the draft minutes, executive session audio is left out.
- After the meeting, the compliance check flags an executive session with no Statutory basis recorded.
Related guides
- Vermont meeting agendas and notices: what to post, where, and whenThe agenda 48 or 24 hours ahead, where it goes, the special-meeting announcement
- Vermont meeting minutes: what they must include and when they are dueWhat minutes record, available and posted within 5 calendar days
- What counts as a meeting in Vermont: quorum, email and chance encountersA quorum and board business; scheduling email and social events are left out
- Online and phone meetings in Vermont: who may join, the physical place and public accessRemote members, the physical place and requests for access
This guide for other states
Sources
- 1 V.S.A. § 313, executive sessions (Open Meeting Law): legislature.vermont.gov/statutes/section/01/005/00313
- 1 V.S.A. § 312, right to attend meetings of public bodies: legislature.vermont.gov/statutes/section/01/005/00312