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January 26, 1999

 

Hon. Victor K. Hamilton II
Councilman
Town of Bath
132 West Morris Street
Bath, NY 14810

The staff of the Committee on Open Government is authorized to issue advisory opinions.
The ensuing staff advisory opinion is based solely upon the information presented in your
correspondence.

Dear Councilman Hamilton:

I have received your letter of January 5. In your capacity as a member of the Bath
Town Board, you described a situation in which an employee of the Town accused of
misconduct reached an agreement with the Town prior to any determination of charges that
you prepared against him. Since the matter was considered in executive session, you asked
whether there are "criteria, law, regulation, etc...stating what must be kept in executive
session and is illegal to release to the public" (emphasis yours).

In this regard, I offer the following comments.

First, I note that the Open Meetings Law is permissive. Although a public body may
enter into an executive session in accordance with the provisions of §105(1) of the Law, there
is no obligation to do so. Therefore, even when there is a valid basis for discussing an issue
during an executive session, a public body is not required to consider the matter in private.

Moreover, in a case in which the issue was whether discussions occurring during an
executive session held by a school board could be considered "privileged", it was held that
"there is no statutory provision that describes the matter dealt with at such a session as
confidential or which in any way restricts the participants from disclosing what took place"
(Runyon v. Board of Education, West Hempstead Union Free School District No. 27,
Supreme Court, Nassau County, January 29, 1987). In my opinion, although information may
be obtained during an executive session properly held, a claim of confidentiality can only be
based upon a statute that specifically confers or requires confidentiality. Unless a statute
prohibits disclosure, I know of no law that would preclude a member of a public body from
disclosing information acquired during an executive session.

While there may be no prohibition against disclosure of information acquired during
executive sessions withheld, the foregoing is not intended to suggest such disclosures would
be uniformly appropriate or ethical. Obviously, the purpose of an executive session is to
enable members of public bodies to deliberate, to speak freely and to develop strategies in
situations in which some degree of secrecy is permitted. Inappropriate disclosures could
work against the interests of a public body as a whole and the public generally. The unilateral
disclosure by a member of a public body might serve to defeat or circumvent the principles
under which those bodies are intended to operate.

Historically, I believe that public bodies were created in order to reach collective
determinations, determinations that better reflect various interests within a community than
a single decision maker could reach alone. Members of boards need not in my opinion be
unanimous in every instance; on the contrary, they should represent disparate points of view
which, when conveyed as part of a deliberative process, lead to fair and representative
decision making. Nevertheless, notwithstanding distinctions in points of view, the decision
or consensus of the majority of a public body should in my opinion generally be recognized
and honored by those members who may dissent. Disclosures made contrary to or in the
absence of consent by the majority could result the revelation of litigation strategy, in
unwarranted invasions of personal privacy, impairment of collective bargaining negotiations
or even interference with criminal or other investigations. In those kinds of situations, even
though there may be no statute that prohibits disclosure, release of information could be
damaging to individuals and the functioning of government.

In the context of the situation that you described, while I believe that the terms of the
agreement between the employee and the Town must be disclosed, charges or allegations that
were never formally proven, in my opinion, may be withheld. Here I direct your attention to
the Freedom of Information Law, which pertains to access to records and states, in part, that
an agency may withhold records insofar as disclosure would result in "an unwarranted
invasion of personal privacy" [see §87(2)(b)].

Although the standard concerning privacy is flexible and may be subject to conflicting
interpretations, the courts have provided substantial direction regarding the privacy of public
employees. It is clear that public employees enjoy a lesser degree of privacy than others, for
it has been found in various contexts that public employees are required to be more
accountable than others. Further, the courts have found that, as a general rule, records that
are relevant to the performance of a public employee's official duties are available, for
disclosure in such instances would result in a permissible rather than an unwarranted invasion
of personal privacy [see e.g., Farrell v. Village Board of Trustees, 372 NYS 2d 905 (1975);
Gannett Co. v. County of Monroe, 59 AD 2d 309 (1977), aff'd 45 NY 2d 954 (1978);
Sinicropi v. County of Nassau, 76 AD 2d 838 (1980); Geneva Printing Co. and Donald C.
Hadley v. Village of Lyons, Sup. Ct., Wayne Cty., March 25, 1981; Montes v. State, 406
NYS 2d 664 (Court of Claims, 1978); Powhida v. City of Albany, 147 AD 2d 236 (1989);
Scaccia v. NYS Division of State Police, 530 NYS 2d 309, 138 AD 2d 50 (1988); Steinmetz
v. Board of Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ, Oct. 30, 1980); Capital
Newspapers v. Burns, 67 NY 2d 562 (1986)]. Conversely, to the extent that records are
irrelevant to the performance of one's official duties, it has been found that disclosure would
indeed constitute an unwarranted invasion of personal privacy [see e.g., Matter of Wool, Sup.
Ct., Nassau Cty., NYLJ, Nov. 22, 1977].

Several of the decisions cited above, for example, Farrell, Sinicropi, Geneva Printing,
Scaccia and Powhida, dealt with situations in which determinations indicating the imposition
of some sort of disciplinary action pertaining to particular public employees were found to be
available. However, when allegations or charges of misconduct have not yet been determined
or did not result in disciplinary action, the records relating to such allegations may, according
to case law, be withheld, for disclosure would result in an unwarranted invasion of personal
privacy [see e.g., Herald Company v. School District of City of Syracuse, 430 NYS 2d 460
(1980)].

If there was no determination to the effect that the employee engaged in misconduct,
I believe that a denial of access to the charges based upon considerations of privacy would
be consistent with law. Nevertheless, there are several decisions indicating that the terms of
settlement agreements reached in lieu of disciplinary proceedings must generally be disclosed
[see Geneva Printing, supra; Western Suffolk BOCES v. Bay Shore Union Free School
District, Appellate Division, Second Department, NYLJ, May 22, 1998, ___ AD2d ___;
Anonymous v. Board of Education for Mexico Central School District, 616 NYS2d 867
(1994); and Paul Smith's College of Arts and Science v. Cuomo, 589 NYS2d 106, 186 AD2d
888 (1992)].

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Town Board