Judges: WRITTEN BY: Don Stenberg, Attorney General Dale A. Comer, Assistant Attorney General
Filed Date: 11/4/1998
Status: Precedential
Modified Date: 7/5/2016
REQUESTED BY: Sara Olsen Scotts Bluff County Attorney In your opinion request letter, you indicated that you were writing on behalf of the Scotts Bluff County Board of Commissioners. You also indicated that you had enclosed a copy of a policy of the Lancaster County Board of Commissioners regarding executive or closed sessions and minutes. You then stated, "[t]he Scotts Bluff County Board of Commissioners is requesting an opinion from the Attorney General as to whether or not the enclosed policy [of the Lancaster County Board] is correct pursuant to the Nebraska Public Meetings Laws."
In our Op. Att'y Gen. # 88024 (March 17, 1988), we stated that we would issue formal opinions of the Attorney General to County Attorneys in Nebraska only with respect to questions involving "criminal matters" and "matters relating to the public revenue." That policy was based upon our statutory authority and the resources available to this office. We continue to adhere to that policy. In addition, we have previously stated that we will issue opinions to executive state officers and members of the Legislature only in connection with matters which arise in the discharge of their duties. See Op. Att'y Gen. # 97002 (January 8, 1997).
In the present instance, we do not believe that the duties of the Scotts Bluff County Board of Commissioners encompass implementation of the policies of the Lancaster County Board. For that reason, we cannot answer the specific question from the Scotts Bluff County Board set out above dealing with the propriety of policies used in Lancaster County. However, from discussions with you and with others, we understand that the actual issue underlying the opinion request from the Scotts Bluff County Board is whether or not the Public Meetings Statutes require public bodies to keep minutes during a closed or executive session. Since possible sanctions for violation of the Nebraska Public Meetings Statutes include criminal prosecution along with other types of enforcement actions, we will provide you with our opinion as to that underlying question, because it does involve criminal matters in a sense, and also because we could be called upon to enforce the public meetings laws with respect to the creation of minutes during a closed session. Our conclusions stated below, therefore, reflect our enforcement policy in connection with the necessity for keeping minutes during a closed session of a public body.
The Nebraska Public Meetings Statutes are generally set out at Neb. Rev. Stat. §§
Two sections of the Public Meetings Statutes have application to the question presented above. First of all, §
(1) Each public body shall keep minutes of all meetings showing the time, place, members present and absent, and the substance of all matters discussed.
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(4) The minutes of all meetings and evidence and documentation received or disclosed in open session shall be public records and open to public inspection during normal business hours.
In addition, §
(2) The vote to hold a closed session shall be taken in open session. The vote of each member on the question of holding a closed session, the reason for the closed session, and the time when the closed session commenced and concluded shall be recorded in the minutes. The public body holding such a closed session shall restrict its consideration of matters during the closed portions to only those purposes set forth in the minutes as the reason for the closed session. The meeting shall be reconvened in open session before any formal action may be taken. . . .
(3) Any member of any public body shall have the right to challenge the continuation of a closed session if the member determines that the session has exceeded the reason stated in the original motion to hold a closed session . . . . Such challenge shall be overruled only by a majority vote of the members of the public body. Such challenge and its disposition shall be recorded in the minutes.
Although the matter is not entirely clear, we believe that the statutes cited above, when considered together, indicate that minutes of all matters discussed need not be kept when a public body is meeting in closed or executive session. §
Our conclusion with respect to the requirements for minutes of a closed session is supported in two respects. First of all, it is clear under §
More importantly, it appears to us that minutes of meetings of public bodies are public records under §
Consequently, for enforcement purposes, this office will take the position that detailed minutes of closed sessions are not required by the Public Meetings Statutes. However, the minutes of such sessions must meet the requirements of §
Sincerely yours,
DON STENBERG Attorney General
Dale A. Comer Assistant Attorney General
APPROVED BY:
Don Stenberg Attorney General