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SECTION IV: EXECUTIVE SESSION- HOW CONVENED
No executive session shall be held until the governmental body has first convened in an open session for which notice has been given, a majority of the members have voted to go into executive session, and the vote of each member is recorded on a roll call vote and entered into the minutes, the presiding officer has cited the purpose for an executive session, and the presiding officer has stated before the executive session if the governmental body will reconvene after the executive session.
The procedures set forth by the statute to be followed when an executive session is convened, are intended, as is the law as a whole to protect the public's right to know what public bodies are doing. It is a violation of the law for a governmental body to fail to follow the steps required by statute to enter into executive session. Ghiglione v. School Committee of Southbridge, 376 Mass. 70 (1978).
After a governmental body has convened in an open session, for which valid notice has been posted, a majority of the quorum present must vote to approve an executive session. This has been interpreted to mean a majority of the members present, rather than a majority of the members voting. Thus on a five member board with two members abstaining from a vote, two members voting in the affirmative to enter an executive session, and one member voting in the negative, the motion would fail and an executive session would be in violation of the statute. District Attorney for the Northwestern District v. Board of Selectmen of Sunderland, 11 Mass. App. Ct. 663 (1981).
The reason for the executive session must be stated in open session before the closed proceeding may be convened. This is to insure that the executive session is held only for one of the specific reasons enumerated by the statute. In addition, a statement of the reason for the executive session permits subsequent review of a governmental body's action. The reason stated strictly limits the matters to be considered. On some occasions, courts have compared the reason stated for an executive session, with the minutes of the closed session and with testimony as to what transpired at the executive session, and have reached the conclusion that the reason stated for the closed session was a sham, Puglisi v. School Committee of Whitman, 11 Mass. App. 142 (1981), and that the executive session was held in violation of the statute.
The presiding officer must state whether the governmental body will reconvene in open session after the exectutive session has been concluded. This is to permit members of the public who are in attendance to make an informed decision whether or not to remain for the purpose of attending a reconvened public session.
An executive session may be held only for one of the seven purposes enumerated in the statute. Yaro v. Board of Appeals of Newburyport, 10 Mass. App. 587 (1980). Exceptions beyond the seven enumerated by the statute are not to be implied. Where there is an express exception to a statute, it comprises the only limitation on the operation of the statute and no other exceptions will be implied. District Attorney for the Plymouth District v. Board of Selectmen of Middleborough, 395 Mass. 629 (1985). In this regard, the statute has been called unambiguous. The burden to show the need for a closed session rests on the governmental body. District Attorney for the Northwestern District v. Board of Selectmen of Sunderland, 11 Mass. App. 663 (1981).
