Ain’t no sunshine when she’s gone, and this house just ain’t a home anytime she goes away….

    An editor in a northwest Missouri community called this week to discuss a city council that met in closed session to review the city manager’s performance.  He and I discussed whether Section 610.021  does allow performance review discussions to be closed.

    But I think I caught him by surprise when I suggested that the subsequent discussion of the potential pay increase for the city manager did not belong in closed session.  I suspect this type of discussion is one of the most frequently-abused aspects of Missouri’s sunshine law.

    Exception 13 specifically speaks of performance ratings being closed records.  And while perhaps one might argue that exception 3 speaks only of disciplining employees or promoting employees, not performing performance reviews, I suspect it would be a rare judge that would buy into the argument that performance reviews would not fit within this perimeter.

    But exception 13 is clear that it does NOT apply to “salaries … of … employees of public agencies once they are employed as such….”  Therefore, I see not a single toe hold for the argument that the salary of a public employee can EVER be discussed in closed session for any reason.

    Therefore, it seems pretty clear that the frequent habit of combining these two discussions needs to be separated for public bodies who want to ensure they are not breaking the law.  I know that will come as a shock to many public governmental bodies.  But it seems to me there is no other way to read the clear language in this exception.  To continue combining these discussions is simply playing with fire.