Saturday, September 29, 2012

Did the legislature’s Community and Consumer Affairs Committee inter into Executive Session legally??

Legislators discuss clerk memo behind closed doors - Valley News 

A memo issued by acting Oswego County Clerk Georgiana Mansfield was the subject of a closed-door session during Wednesday’s meeting of the legislature’s Community and Consumer Affairs Committee.

The memo, issued Sept. 20 states, “Any contact with representatives of the public, media or legislators concerning the functioning of the Oswego County Clerk’s office or any topic concerning this office not related to the filing, recording or searching of documents will be handled solely by the acting county clerk or the deputy clerk.”

Legislators held a lengthy executive session and adjourned the meeting as soon as reconvened. Legislator Terry Wilbur, who serves as committee chairman, said after the meeting that he could not comment on the executive session.

Legislator Jake Mulcahey attempted to discuss the memo in the public session and the executive session was called for the reason of “proposed litigation or arbitration” as well as Article 14 of the Taylor Law. Post


State of New York
Department of State
Committee on Open Government
Robert J. Freeman, Executive Director


                                                                                    March 8, 2012

Dear:
            This is in response to your request for an advisory opinion regarding application of the Open Meetings Law to meetings of the Board of Education of the Edwards-Knox Central School District.  Specifically, you questioned whether the Board could enter into executive session without articulating grounds for doing so, and whether grounds that were later included in the minutes were sufficient.  You asked whether minutes of executive sessions must be prepared, and finally, sought advice regarding what may be an incomplete response to a request for records made pursuant to the Freedom of Information Law. 
            The District responded (copy attached), indicating that subsequent to the September 6th  meeting at which the motion at issue was made, the entire board, including three newly elected members, received training from the Board’s attorney, and that the Open Meetings Law “has been followed since.”  Our review of the written materials you submitted indicates that there was a motion to enter executive session on September 19th for “discussion of individual participants and CSE”, subsequent to a presentation by the school attorney regarding the role and responsibilities of the School Board. 
            In this regard, we note that the Open Meetings Law (copy attached) requires that meetings of public bodies must be conducted open to the public, unless there is a basis for entry into an executive session. The subjects that may properly be considered in executive session are specified in paragraphs (a) through (h) of §105(1) of the Open Meetings Law. Because those subjects are limited, a public body cannot conduct an executive session to discuss the subject of its choice.  In addition, the motion must be specific enough so that the public is informed that the topic or topics for discussion fall under one of the permitted options.
            For example, the provision that deals with litigation is §105(1)(d), which permits a public body to enter into an executive session to discuss “proposed, pending or current litigation”.  In construing the language quoted above, it has been held that:
“The purpose of paragraph d is “to enable is to enable a public body to discuss pending litigation privately, without baring its strategy to its adversary through mandatory public meetings’ (Matter of Concerned Citizens to Review Jefferson Val.  Mall v. Town Bd.  Of Town of Yorktown, 83 AD 2d 612, 613, 441 NYS 2d 292). The belief of the town’s attorney that a decision adverse to petitioner ‘would almost certainly lead to litigation’ does not justify the conducting of this public business in an executive session.  To accept this argument would be to accept the view that any public body could bar the public from its meetings simply be expressing the fear that litigation may result from actions taken therein.  Such a view would be contrary to both the letter and the spirit of the exception” [Weatherwax v. Town of Stony Point, 97 AD 2d 840, 841 (1983)].
            Based upon the foregoing, we believe that the exception is intended to permit a public body to discuss its litigation strategy behind closed doors, rather than issues that might eventually result in litigation. 
            With regard to the sufficiency of a motion to discuss litigation, it has been held that:
“It is insufficient to merely regurgitate the statutory language; to wit, ‘discussions regarding proposed, pending or current litigation’. This boilerplate recitation does not comply with the intent of the statute.  To validly convene an executive session for discussion of proposed, pending or current litigation, the public body must identify with particularity the pending, proposed or current litigation to be discussed during the  executive session” [Daily Gazette Co. , Inc.  v. Town Board, Town of Cobleskill, 44 NYS 2d 44, 46 (1981), emphasis added by court].
            As such, a proper motion might be:  “I move to enter into executive session to discuss our litigation strategy in the case of the XYZ Company v. the Board of Education.”
            As another example, the language of the so-called “personnel” exception, §105(1)(f) of the Open Meetings Law, is limited and precise. In terms of legislative history, as originally enacted, the provision in question permitted a public body to enter into an executive session to discuss:
“...the medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation...” (emphasis added).
            Due to the presence of the term “particular” in §105(1)(f), we believe that a discussion of “employment history” may be considered in an executive session only when the subject involves a particular person or persons.
            It has been advised that a motion involving §105(1)(f) should be based on its specific language.  For instance, a proper motion might be:  “I move to enter into an executive session to discuss the employment history of a particular person (or persons)”.  Such a motion would not in our opinion have to identify the person or persons who may be the subject of a discussion.  By means of the kind of motion suggested above, members of a public body and others in attendance would have the ability to know that there is a proper basis for entry into an executive session.
            In January of this year, the Appellate Division, rendered a decision regarding the specificity of motions for entry into executive session.  In Zehner v. Board of Education of Jordan-Elbridge  (copy attached), the court required a public body to “identify with particularity the topic to be discussed, … since only through such identification will the purposes of the Open Meetings Law be realized.”  The school board had entered into executive session in three separate scenarios, based on a recitation of the statutory language in §105.  Conforming the holding in Daily Gazette, the court determined that “merely regurgitating” the statutory language was insufficient.  In one instance, the court held that when the board entered into executive session to discuss “matters related to the appointment or employment of a particular person,” it must identify the matter as part of the process of searching for a new superintendent. 
            Accordingly, we encourage board members to share more information about their intended topic(s) for discussion in executive session in a manner that clarifies that the discussions are within the parameters of the law, and to protect individuals from what might be an unwarranted invasion of personal privacy and/or the government’s ability to function.  A motion involving §105(1)(f) should be based on its specific language, and if the discussion will pertain to candidates for a certain vacant position, for example, it should contain reference to such position.  If the discussion is limited to potential disciplinary action against a particular employee, identifying the person’s title, in our opinion, would not be necessary.  Such  motions would not in our opinion have to identify the person or persons who may be the subject of a discussion.  By means of the kind of motion suggested above, members of a public body and others in attendance would have the ability to know that there is a proper basis for entry into an executive session.
            With respect to your questions regarding minutes of executive sessions, please note that although §106(2) refers to minutes of executive session when action is taken, only in rare instances may a board of education take action during an executive session.  As a general rule, a public body may take action during a properly convened executive session [see Open Meetings Law, §105(1)].  In the case of most public bodies, if action is taken during an executive session, minutes reflective of the action, the date and the vote must be recorded in minutes pursuant to §106(2) of the law.  If no action is taken, there is no requirement that minutes of the executive session be prepared.  Various interpretations of the Education Law, §1708(3), however, indicate that, except in situations in which action during a closed session is permitted or required by statute, a school board cannot take action during an executive session [see United Teachers of Northport v. Northport Union Free School District, 50 AD 2d 897 (1975); Kursch et al. v. Board of Education, Union Free School District #1, Town of North Hempstead, Nassau County, 7 AD 2d 922 (1959); Sanna v. Lindenhurst, 107 Misc. 2d 267, modified 85 AD 2d 157, aff’d 58 NY 2d 626 (1982)].  Stated differently, based upon judicial interpretations of the Education Law, a school board generally cannot vote during an executive session, except in those unusual circumstances in which a statute permits or requires such a vote.
             Finally, with respect to the concern that the District may not have provided all records that were requested pursuant to the Freedom of Information Law, we note that when an agency fails to respond or to respond in full to a request for records, the law provides  an appeals process.   See the attached “Explanation of Time Limits.”  Further, when an agency indicates that it does not maintain or cannot locate a record, an applicant for the record may seek a certification to that effect.  Section 89(3) of the Freedom of Information Law provides in part that, in such a situation, on request, an agency “shall certify that it does not have possession of such record or that such record cannot be found after diligent search.”  It is emphasized that when a certification is requested, an agency “shall” prepare the certification; it is obliged to do so.
            We hope that this is helpful.
                                                                                    Sincerely,

                                                                                    Camille S. Jobin-Davis
                                                                                    Assistant Director                  
CSJ:sb
Enclosure: Open Meetings Law
cc:        Teresa Hogle, Board of Education President
            Suzanne Kelly, Superintendent of Schools

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