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OML-AO-3506

August 19, 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 facts presented in your correspondence.

Dear

I have received your letter of August 5 concerning a gathering of a board of assessment review. You referred to our conversation in which it was advised that judicial and quasi-judicial proceedings are exempt from the Open Meetings Law, and you wrote that the "only 'judicial and quasi-judicial proceedings that [you are] aware the local board of assessment review could enter, is an executive session." You added that it is your belief that a public body may only enter into an executive session is "from a legally convened 'regular' meeting for which proper notice was posted."

While it appears that your understanding of the Open Meetings Law is accurate in some respects, I believe that it is inaccurate in others.

In this regard, there are two vehicles that may authorize a public body to discuss public business in private. One involves entry into an executive session. As you suggested, §102(3) of the Open Meetings Law defines the phrase "executive session" to mean a portion of an open meeting during which the public may be excluded, and the Law requires that a procedure be accomplished, during an open meeting, before a public body may enter into an executive session. In short, prior to conducting an executive session, a motion must be made that includes reference to the subject or subjects to be discussed, and it must be carried by majority vote of a public body's membership.

The other vehicle for excluding the public from a meeting involves "exemptions." Section 108 of the Open Meetings Law contains three exemptions. When an exemption applies, the Open Meetings Law does not, and the requirements that would operate with respect to executive sessions are not in effect. Stated differently, to discuss a matter exempted from the Open Meetings Law, a public body need not follow the procedure imposed by §105(1) that relates to entry into an executive session. Further, although executive sessions may be held only for particular purposes, there is no such limitation that relates to matters that are exempt from the coverage of the Open Meetings Law.

Relevant to the situation is §108(1), which exempts from the Open Meetings Law:

"...judicial or quasi-judicial proceedings..."

After an assessment board of review has heard arguments and then deliberates in a manner akin to an appellate court, its deliberations would be "quasi-judicial" and, therefore, exempt from the Open Meetings Law.

While it is not my intent to be overly technical, it is reiterated an executive session is a portion of an open meeting. Further, every meeting must be convened as an open meeting and preceded by notice given in accordance with §104 of the Open Meetings Law. Conversely, if a board gathers solely for the purpose of considering a matter exempt from the Open Meetings Law, the gathering need not be preceded by notice, and there would be no obligation to follow the procedure applicable for entry into executive session or to give notice.

Lastly, in Orange County Publications v. City of Newburgh, it was held that:

"there is a distinction between that portion of a meeting...wherein the members collectively weigh evidence taken during a public hearing, apply the law and reach a conclusion and that part of its proceedings in which its decision is announced, the vote of its members taken and all of its other regular business is conducted. The latter is clearly non-judicial and must be open to the public, while the former is indeed judicial in nature, as it affects the rights and liabilities of individuals" [60 AD 2d 409,418 (1978)].

Therefore, although an assessment board of review may deliberate in private, based upon the decision cited above, the act of voting or taking action must in my view occur during an open meeting held in accordance with the Open Meetings Law and preceded by notice.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

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