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Lesson 4 of 9 · about 17 minutes

Executive Sessions, Subsection by Subsection

Data reference: Known Idaho Open Meeting Law Violations, the documented Idaho cases from 2017 to 2026 with dates, findings and outcomes. Also: Kinds of violation · Cases at a glance · The statute

You'll be able to

  • Match a proposed closed session to the right 74-206(1) paragraph, or to none
  • Check the motion, the roll call and the two-thirds math
  • Explain what Labrador v. Idaho State Board of Education (2024) did to 74-206(1)(e)
  • Know what any member of the public can do before, during and after a closed session

An executive session is the only legal way for an Idaho governing body to shut the public out. 74-206 allows it "only for the purposes and only in the manner set forth in this section," and 74-206(2) says the exceptions "shall be narrowly construed." The AG manual puts it more bluntly: no entity should try to "shoehorn" an issue into an exception. Your job is to check both halves, purpose and manner, every time.

The manner: procedure

  1. A valid open meeting first. Executive sessions happen inside meetings, so the meeting needs proper notice and an agenda. A meeting held only for an executive session needs 24 hours' notice that states the reason and the specific provision of law (74-204(3)).
  2. A motion naming the subsection. "The motion to go into executive session shall identify the specific subsections of this section that authorize the executive session." Saying "personnel" or "legal" is not a citation. "Idaho Code 74-206(1)(b)" is.
  3. A roll call vote, recorded in the minutes. Each member's vote by name.
  4. Two-thirds. "An executive session shall be authorized by a two-thirds (2/3) vote of the governing body."

Worked example: the two-thirds math

The statute speaks of two-thirds "of the governing body," and the AG manual says two-thirds "of the members," without the word "present." The cautious reading counts the full membership. Under that reading:

Board size2/3 of membersYes votes needed
32.002
53.334
74.675
96.006

On a five-member board with one member absent, a 3 to 1 vote is 75 percent of those present but only 60 percent of the board. Under the cautious reading that falls short. No Idaho appellate decision this course found settles "members present" versus "full board," so if you raise a close vote at a meeting, in testimony or online, show the math both ways.

One statutory exception: under 74-206(4), a school district, charter district or public charter school board with so many vacancies that fewer than two-thirds of seats are filled may enter executive session on a simple majority roll call.

The purposes, one by one

Para.What it allowsLimits written into the textMisuse to watch for
(a)Considering hiring a public officer, employee, staff member or individual agent, evaluating individuals to fill a particular vacancy or needNot for filling a vacancy in an elective office. Not for staffing needs in general.Closing to discuss reorganizing departments or appointing someone to a vacant council seat
(b)Evaluation, dismissal or discipline of, or complaints against, an officer, employee, staff member, agent or public school studentTied to an individual officer, employee, agent or student"Personnel matters" used for salary schedules or policy
(c)Acquiring an interest in real property not owned by a public agencyAcquisitions only; not property owned by another public agencySelling surplus land, or buying from the school district
(d)Considering records exempt from disclosure under the Public Records Act (title 74, chapter 1)The records must actually be exemptClosing to discuss a draft that would be public
(e)Preliminary negotiations on trade or commerce where the body is in competition with governing bodies in other states or nationsPreliminary stage only; actual competition (see the 2024 case below)Closing all deal talks right up to the vote
(f)Communicating with the agency's legal counsel about legal ramifications and options for pending litigation, or controversies imminently likely to be litigated"The mere presence of legal counsel" doesn't satisfy itInviting the attorney so the board can talk policy behind closed doors
(g)Commission of Pardons and Parole, as provided by lawThat body only
(h)Custody review board of the Department of Juvenile Corrections, as provided by lawThat body only
(i)Communicating with the agency's risk manager or insurer about adjusting a pending claim or preventing one imminently likelyMere presence of the insurer's representative doesn't satisfy itGeneral discussion of liability exposure
(j)Labor contract matters under 74-206A(1)(a) and (b): deliberating on an offer or counteroffer, or receiving private information about a specific employee bearing on negotiationsThe negotiations themselves are open under 74-206A(1)Holding the bargaining sessions in private

Notice what's missing. Budgets. Policy. Strategy. Public relations. "Personnel" in general. The AG manual says a board "cannot conduct an executive session to consider general personnel matters," only the specific ones in (a) and (b). And the law permits closed sessions without requiring them. A board can always choose to discuss a covered topic in public.

The 2024 trade-and-commerce ruling

The text of 74-206(1)(e) hasn't changed in years, but its meaning did, and you won't see that on the Legislature's statute page. In 2023 the State Board of Education, acting for the University of Idaho, met repeatedly in executive session under (1)(e) while negotiating to acquire the University of Phoenix. Attorney General Raúl Labrador sued. A district court sided with the board in January 2024. On December 5, 2024, the Idaho Supreme Court reversed in Labrador v. Idaho State Board of Education (Docket No. 51580):

  • By a 4 to 1 vote, it held the lower court erred by reading "preliminary negotiations" to cover all negotiations before public approval of a contract, a reading the court said "cloaks all negotiations and actions taken prior to a final public vote in shadow."
  • It held that the body must actually be in competition with another governing body when it closes the doors. The board's belief that it faced competing bidders wasn't enough.
  • It sent the case back to the district court, which left the nearly $243,000 fee award the lower court had granted the board in doubt. It did not decide whether a violation occurred.

The deal was terminated in June 2025, and the Attorney General announced on June 18, 2025, that both sides agreed to dismiss the case, each paying its own costs. So no court ever ruled the sessions illegal. The legal standards from the December 2024 opinion still stand. When an agency cites (1)(e), ask which other state or nation it is competing with, and what stage the talks are in.

Data: Real examples: Caldwell trustees (wrong subsection), Nampa City Council, State Board of Education, Idaho Land Board. Categories: Defective executive session, Final action in executive session.

What happens inside, and after

  • Stay on topic. 74-206(2) makes it a violation "to change the subject within the executive session to one not identified within the motion."
  • No final action. 74-206(3): "No executive session may be held for the purpose of taking any final action or making any final decision." Watch for a board that emerges and votes in seconds with no discussion. That isn't automatically illegal, but it's a sign the discussion happened behind the door, and it's fair to ask how far it went.
  • Minutes. 74-205(2) requires minutes that cite the authorizing subsection and give "sufficient detail to identify the purpose and topic" without compromising the reason for closing. "Executive session held" fails that test. "Executive session under 74-206(1)(c) to consider acquiring a parcel for a fire station" passes.

What anyone in the audience can do

  1. Before: read the agenda for the cited subsection. If none is listed, ask the clerk which one will be used.
  2. At the motion: note the exact words, the subsection cited, and each member's roll call vote. Record it (your recording right ends when the doors close, but the motion happens in open session).
  3. Note the clock time the board leaves and returns.
  4. Stay. Final action has to happen in the open, so the vote that follows is public.
  5. After: ask for the minutes, including the executive session portion, under the Public Records Act. Compare the stated topic to what the board did when it returned.
  6. If the purpose doesn't fit the subsection, a written notice to the clerk can start the cure process covered later in this module.

Common mix-ups

  • Claim: Anything involving employees can be closed as "personnel." What the evidence shows: Only the specific matters in (a) and (b). The AG says general personnel matters can't be closed.
  • Claim: If the attorney is present, the board can close. What the evidence shows: (1)(f) says the mere presence of legal counsel does not satisfy the requirement.
  • Claim: Economic development deals can stay secret until the vote. What the evidence shows: The Idaho Supreme Court rejected that reading of (1)(e) in December 2024.

Reporting angle

  • Tally a year of executive sessions: date, subsection cited, minutes' topic description, and what was voted on afterward. Patterns show up fast.
  • Count roll call votes against the two-thirds math above.
  • For (1)(f) sessions, ask what litigation is pending or what claim is imminently likely. A case number or demand letter usually exists.
  • For (1)(c) sessions, follow up on the property. Purchase agreements become public records once signed.

Research angle

Checklist

  • Motion cites a specific 74-206(1) paragraph.
  • Roll call recorded; at least two-thirds of the board voted yes.
  • Purpose actually fits the paragraph, read narrowly.
  • Discussion stayed on the topic named in the motion.
  • No final action behind closed doors.
  • Minutes cite the subsection and identify the topic.

Check yourself

1. A county commission wants to go into executive session to talk about whether to create a new deputy position. Which subsection applies?

2. A seven-member board votes 4 to 3 on a roll call to enter executive session. Under the two-thirds rule, what happened?

3. What did the Idaho Supreme Court hold in Labrador v. Idaho State Board of Education (December 2024)?

4. A school board's attorney is in the room, so the chair moves to close the meeting under 74-206(1)(f) to discuss a new attendance policy. What's wrong?

5. During a closed session properly called to evaluate the administrator, members start discussing a land purchase. What does 74-206(2) say?

6. What must executive session minutes include under 74-205(2)?

Terms in this lesson

Roll call vote
A vote where each member's name is called and their vote recorded individually.
Narrowly construed
Read as tightly as the words allow; 74-206(2) requires this for every executive session exception.
Final action
A vote or decision that settles a matter. 74-206(3) bars it in executive session.
Imminently likely litigation
A dispute not yet in court but close enough to filing to justify a closed session with counsel under 74-206(1)(f).
Preliminary negotiations
Early-stage talks on trade or commerce where a body competes with governments in other states or nations; read narrowly by the Idaho Supreme Court in 2024.

Full glossary

Sources