Imperial Republican

    In Nebraska, state statutes, known as the Open Meetings Act, allow public bodies to go into closed session for several tightly defined rea-sons: when it is clearly necessary for the protection of the public interest or for the prevention of needless injury to the reputation of an individual and if such individual has not requested a public meeting.
     The statutes state the closed sessions may be held for, but shall not be limited to, such reasons as:
     • Strategy sessions with respect to collective bargaining, real estate purchases, pending litigation, or litigation which is imminent as evidenced by communication of a claim or threat of litigation to or by the public body;
     • Discussion regarding deployment of security personnel or devices;
     • Investigative proceedings regarding allegations of criminal misconduct; or
     • Evaluation of the job performance of a person when necessary to prevent needless injury to the reputation of an individual and if such individual has not requested a public meeting.
     Discussion in the closed session must be limited to the reasons stated in the minutes for convening a closed session.
     Furthermore, no decision making or action can be taken by a public body while in closed session, nor can a body simply come out of closed session and rubber stamp a decision determined during the closed session.
     When the Upper Republican Natural Resource District began developing an integrated management plan that included a reduction in allocations, numerous closed sessions, that included counsel, were held.
     WaterClaim, a local water advocacy group, and other individuals, filed suit against the URNRD, claiming that public policy was being set by the board during those closed sessions, resulting in an alleged violation of the open meetings law.
     As part of the pre-trial discovery, the plaintiffs sought to take depositions from the NRD board and management. However, when the depositions broached the content of closed session discussions, the NRD's counsel objected. The depositions were terminated on the basis that discussions in closed session are not subject to discovery because they were confidential and protected by attorney-client privilege.
     After the district court later ruled the NRD must sit for depositions, the NRD sought relief from the Supreme Court.
     In a ruling released earlier this month, the Supreme Court ruled that just because discussions are held in closed session, there is no absolute privilege for those discussions.
     While this was always assumed to be the case, this was the first time that the Nebraska high court clarified that in a ruling, according to one Nebraska media law specialist.
     This portion of the ruling solidifies the public's right to know what's going on with our government and is a victory for each and every one of us. If all of the discussions of public bodies behind closed doors were privileged and beyond reproach, how would a member of the public ever know whether a violation occurred without the ability of a legitimate discovery process.
     While the ruling in this case says closed session does not provide absolute privilege, the court still says in another portion of the ruling that discussions the NRD had behind closed doors may still be protected by attorney-client privilege, and hence, no violation of open meetings law.
     Ultimately, that issue will have to return to court, to be decided under the close scrutiny of the discovery process by the court. Whether the plaintiffs decide to do so remains to be seen.
     While the ruling was not a landmark decision in open meetings law, the high court served notice to all public bodies that they must indeed be accountable for the purposes they go into closed session for, as well as the scope of their discussions behind closed doors.