October 24, 1994
Hon. Salvatore B. Indelicato
285 Tyler Road
Narrowsburg, NY 12764
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, unless otherwise indicated.
Dear Councilman Indelicato:
I have received your letter of September 26 in which you referred to an opinion that I prepared in August.
A portion of the opinion was based upon the fact that Cochecton Town Highway Department employees were not members of a union, and that, therefore, a discussion of their salaries, as a group, would not fall within the coverage of §105(1)(e) of the Open Meetings Law. That provision authorizes a public body to enter into executive session to consider "collective negotiations pursuant to article fourteen of the civil service law." As you are aware, Article 14 is commonly known as the "Taylor Law" and deals with the relationship between public employers and public employee unions, which are characterized in §201(5) of the Civil Service Law as "employee organizations."
In this regard, you wrote that in addition to an elected highway superintendent, the Town employs five heavy machine equipment operators, and that "[t]hese five men, collectively united, sought and received the services of an attorney to represent them before the town board to negotiate their labor contract." You added that "[t]o your knowledge, this attorney has no other business association with the highway department."
Since the phrase "employee organization" in defined to mean "an organization of any kind having as its primary purpose the improvement of terms and conditions of employment of public employees", you asked whether "we [should] assume section 105(1)(e) of the Public Officer's [sic] Law is applicable."
Because I am not an expert regarding the Taylor Law, I contacted the Public Employment Relations Board (PERB) in an effort to obtain guidance. I was informed by an attorney for the Board that in order to be considered an employee organization for purposes of the Taylor Law, certain criteria must be met. The organization must be certified by PERB or recognized by an employer in order to engage in collective bargaining negotiations. I was also informed that to be an employee organization, an entity must function as a collective bargaining unit in an ongoing manner with respect to all issues involving the terms and conditions of employment.
In the context of the situation in Cochecton, it was advised by PERB that if the attorney represented the five employees only for purposes of negotiating their contract, and if there is no ongoing relationship between the employees, as a negotiating unit, and the Town, the group of five is not an employee organization for purposes of the Taylor Law.
Based on the information made available to me, it appears that the group is not an employee organization. If that is so, §105(1)(e) of the Open Meetings Law would not have served as a basis for conducting an executive session.
I hope that I have been of some assistance.
Robert J. Freeman