December 2, 1994
Ms. Rose Mary Christian
Sixth Ward Councilwoman
210 S. Swan Street
City of Batavia, NY 14020
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 Ms. Christian:
As you are aware, I have received your letter of October 27 and the materials attached to it.
You referred to executive sessions held on October 11 by the Batavia City Council, and it is your view that the Council was "called into executive session under false pretenses." Although you enclosed minutes of the meeting, as you suggested, the pages are not numbered. Consequently, in an effort to learn more of the matter and to focus on relevant portions of the minutes, I contacted Rebecca Chatt Swanson, City Clerk. Based on my conversation with her, although executive sessions were called for several reasons, it is my understanding that the executive session that is the focus of your inquiry involved litigation relating to a contested assessment. You have sought my views concerning your "rights and responsibities in the matter." Further, you highlighted a summary of an opinion that I prepared involving the ability to disclose information acquired during an executive session.
In this regard, I offer the following comments.
First, the Open Meetings Law provides two vehicles under which the public, in appropriate circumstances, may be excluded from meetings of public bodies. One is an executive session, a portion of an open meeting during which the public may be excluded [see Open Meetings Law, §102(3)]. Members of a public body have the right to attend executive session of the body [see §105(2)].
Relevant to the issue that you raised is §105(1)(d) of the Open Meetings Law, which 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 foregoing, I believe that the exception is intended to permit a public body to discuss its litigation strategy behind closed doors.
The other vehicle that authorizes private discussion arises under §108 of the Open Meetings Law. Section 108 contains three "exemptions", and if a matter is "exempted" from the Open Meetings Law, that statute is not applicable.
Of relevance to the situation that you described is §108(3), which exempts from the Open Meetings Law:
"...any matter made confidential by federal or state 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 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 the City Council sought legal advice from its attorney and the attorney offered legal advice, the communications between the Council and the attorney would, in my opinion, have been confidential and outside the coverage of the Open Meetings Law.
Second, 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. Similarly, I know of no judicial decisions involving the Open Meetings Law and disclosure by a member of public body of information that would be subject to the attorney-client privilege. When the privilege is operable in that context, it exists between the client, the public body, and its attorney. Although the client may waive the privilege, it is unclear whether a waiver can only be accomplished when a majority of the members of the body choose to do so, or whether a single member, acting independently, has the authority to waive the privilege and disclose what otherwise would be confidential.
When a member of a public body has sued 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 adversary party in litigation (but perhaps a dissenter or person with a minority view), that person would have the right under §105(2) of the Open Meetings Law to attend an executive session.
Lastly, 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. I hope that I have been of some assistance.
Robert J. Freeman
cc: City Council
Rebecca Chatt Swanson, City Clerk