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OML-AO-3436

April 15, 2002

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

I have received your letter in which you sought my views concerning your right, as a member of the Chemung Town Board, to attend executive sessions of the Board. You indicated that you were asked to leave an executive session held to discuss collective bargaining negotiations because your husband works for the Highway Department.

In this regard, I believe that a member of a public body, such as a town board, clearly has the right to attend an executive session. Section 105(2) of the Open Meetings Law states that: "Attendance at an executive session shall be permitted to any member of the public body and any other persons authorized by the public body." Based on the foregoing, I believe that the only persons who have the right to attend executive sessions of the Board are members of the Board.

It is noted that an executive session serves as one of two vehicles that might be employed as a means of closing a meeting. Section 108 of the Open Meetings Law pertains to "exemptions", and if an exemption is applicable, the Open Meetings Law is not; it is as if the Open Meetings Law does not exist.

Relevant in some circumstances is §108(3) concerning matters made confidential by law. When an attorney-client relationship has been invoked, the communications made pursuant to that relationship are considered confidential under §4503 of the Civil Practice Law and Rules. Consequently, if an attorney and a client establish a privileged relationship, the communications made pursuant to that relationship would in my view be confidential under state law and, therefore, exempt from the Open Meetings Law.

In terms of background, it has long been held that a municipal board may establish a privileged relationship with its attorney [People ex rel. Updyke v. Gilon, 9 NYS 243 (1989); Pennock v. Lane, 231 NYS 2d 897, 898 (1962)]. However, such a relationship is in my opinion operable only when a municipal board or official seeks the legal advice of an attorney acting in his or her capacity as an attorney, and where there is no waiver of the privilege by the client.

In a judicial determination that described the parameters of the attorney-client relationship and the conditions precedent to its initiation, it was held that:

"In general, 'the privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services (iii) assistance in some legal proceedings, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client'" [People v. Belge, 59 AD 2d 307, 399, NYS 2d 539, 540 (1977)].

Therefore, insofar as a public body or members of a public body seek legal advice from their attorney and the attorney offers legal advice, the communications would, in my opinion, be confidential and outside the coverage of the Open Meetings Law. Further, it has been advised that when a member of a public body is a litigant or potential litigant who has initiated or may initiate a lawsuit against the public body, those other members of the public body may engage in attorney- client communications in private, and outside the coverage of the Open Meetings Law. While a member of a public body has the right to attend an executive session, in the context of the situation described in the preceding sentence, I do not believe that that person, as a litigant or potential litigant, would enjoy the same right to attend a gathering of the other members with their attorney during which the communications are subject to the attorney-client privilege.

The foregoing in my view is consistent with the judicial interpretations of the Open Meetings Law covering discussions regarding litigation. Section §105(1)(d) of the Open Meetings Law 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 passage quoted above, I believe that the exception is intended to permit a public body to discuss its litigation strategy behind closed doors.

When a member of a public body has sued or is likely to sue that body and is its legal adversary, I believe he or she could validly be excluded from a gathering between the other members and their attorney in which the attorney-client privilege is properly invoked. The member-adversary in that instance would not be the client, and that person's exclusion would, in my view, be consistent with the thrust of case law concerning the intent of §105(1)(d), the litigation exception for litigation. In that situation, the gathering would be exempted from the Open Meetings Law insofar as the attorney-client privilege applies. However, if a member of a public body is not an adversarial or potential adversarial party in litigation (but perhaps a dissenter or person with a minority view), I believe that he or she would have the right under §105(2) of the Open Meetings Law to attend an executive session.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

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