Hon. Frank Coccho, Sr.
City of Corning
14 Maple Street
Corning, NY 14830
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 Alderman Coccho:
I have received your recent letter in which you sought an advisory opinion concerning the propriety of a proposed executive session.
By way of background, you wrote that:
"A City employee (mid management/non union) contemplating retirement, has requested a joint executive session with the Council and Board of Public Works Commissioners. Reason given for the session is a 'specific personnel matter'.
"It is expected that the employee will request the respective governing bodies to consider awarding him a monetary 'cash out' package (current contractual provision for unionized employees) for accumulated sick days even though the City is neither legally or contractually obligated to do so. In addition, the employee recently pled guilty to a felony in a U.S. district court. As a result, there is a possibility that the personnel aspects of the employee's life could be a topic of discussion, which under normal circumstances would be a legitimate personnel matter. However, the events surrounding and including the plea were publicly disclosed in the local media. Unfortunately, the publicity on this matter has now made the employee's life an 'open book'."
It is your view that the matter "could be considered as policy or precedent setting" and that there would be no legal basis for conducting an executive session.
In this regard, I offer the following comments.
First, the Open Meetings Law is based upon a presumption of openness. Stated differently, meetings of public bodies must be conducted open to the public, except to the extent that the subject matter under consideration may properly be discussed during an executive session.
It is noted that every meeting must be convened as an open meeting, and that §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. Consequently, it is clear that an executive session is not separate and distinct from an open meeting, but rather that it is a part of an open meeting. Moreover, the Open Meetings Law requires that a procedure be accomplished, during an open meeting, before a public body may enter into an executive session. Specifically, §105(1) states in relevant part that:
"Upon a majority vote of its total membership, taken in an open meeting pursuant to a motion identifying the general area or areas of the subject or subjects to be considered, a public body may conduct an executive session for the below enumerated purposes only..."
As such, a motion to conduct an executive session must include reference to the subject or subjects to be discussed, and the motion must be carried by majority vote of a public body's membership before such a session may validly be held. The ensuing provisions of §105(1) specify and limit the subjects that may appropriately be considered during an executive session. Therefore, a public body may not conduct an executive session to discuss the subject of its choice.
Second, perhaps the most frequently cited ground for entry into executive session is the basis that is the focus of your inquiry, the so-called "personnel" exception. Although it is used often, the word "personnel" appears nowhere in the Open Meetings Law. While one of the grounds for entry into executive session relates to personnel matters, the language of that provision is precise. In its original form, §105(1)(f) of the Open Meetings Law permitted a public body to enter into an executive session to discuss:
"...the medical, financial, credit or employment history of any person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of any person or corporation..."
Under the language quoted above, public bodies often convened executive sessions to discuss matters that dealt with "personnel" generally, tangentially, or in relation to policy concerns. However, the Committee consistently advised that the provision was intended largely to protect privacy and not to shield matters of policy under the guise of privacy.
To attempt to clarify the Law, the Committee recommended a series of amendments to the Open Meetings Law, several of which became effective on October 1, 1979. The recommendation made by the Committee regarding §105(1)(f) was enacted and now states that a public body may 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 insertion of the term "particular" in §105(1)(f), I believe that a discussion under that provision may be considered in an executive session only when the subject involves a particular person or persons, and only when one or more of the topics listed in §105(1)(f) are considered.
Although the language of §105(1)(f) is not restricted to issues involving prospective, current or former employees, it does not permit a public body to discuss every subject that might arise in relation to a "particular person". Again, the language of that provision is precise and pertains only to certain enumerated subjects that relate to an individual. I agree with your contention that the matter essentially involves an issue of policy, i.e., whether the City should award a "'cash out' package" now only available to union members to employees who are not union members.
Moreover, even though any action taken might relate currently only to one employee, presumably that action would affect or serve as precedent in cases arising in the future pertaining to other non-union employees. In a decision involving different facts but in my opinion the same principle, it was held that the "personnel" exception for entry into executive session was not validly asserted. The court stated that:
"In relying on the exception contained in paragraph f, the town asserts that its decision 'applied to a particular person, the Appellant herein'. While the town board's decision certainly did affect petitioner, and indeed at the time the decision was made affected only him, the town board's decision was a policy decision to not extend insurance benefits to police officers on disability retirement. Presumably this policy decision will apply equally to all persons who enter into that class of retirees. Thus, it cannot be said that the purpose of the meeting was to discuss 'the medical, financial, credit or employment history of a particular person'" [Weatherwax v. Town of Stony Point, 97 AD 2d 840, 841 (1983)].
In sum and in conjunction with the information that you provided, while a discussion of an individual's financial history, for example, could be considered in executive session, that issue must in my opinion be distinguished from consideration of the possible award of a "cash out" package. For reasons discussed previously, the latter pertains to a matter of policy that could or would affect non-union employees in the future. Consequently, I do not believe that an executive session could properly be held to discuss the award of a cash out package.
Lastly, I point out that the Open Meetings Law is permissive. Although a public body has the authority to conduct an executive session, it has no obligation to do so. Therefore, even if some aspect of the discussion may be held in private, the Open Meetings Law would not require that an executive session be held.
I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.
Robert J. Freeman
cc: Hon. James Bacalles, Mayor