Hon. Joseph J. Cerbone
Village/Town of Mount Kisco
40 Green Street
Mount Kisco, NY 10549
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 Judge Cerbone:
I have received your letter of December 15 in which you referred to a summary of an opinion that I prepared concerning the Open Meetings Law. The summary states that: "When entering into executive session to discuss proposed, pending or current litigation, the public body must identify with particularity, the proposed, pending or current litigation to be discussed during the executive session."
Attached to your letter is a response by the Mount Kisco Village Attorney to an editorial that apparently criticized practices of the Village Board of Trustees. He wrote that in his view:
"the Village Board's practice of refusing to identify the litigation matter which will be discussed is entirely correct. There is no authoritative judicial decision which holds otherwise. The few trial court decisions which seem to say that more is required, do so only in extraneous comments not necessary to reach the decision in the case, which are, therefore, not binding precedent. There has not been any definitive appellate ruling on the subject. Until such time as there is, my opinion to the Board, which is based upon the direct language of the statute, will not change."
You have asked whether I concur with the Village Attorney's opinion. In this regard, I offer the following comments.
First, as you are aware, 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.
Second, the provision that deals with litigation is §105(1)(d) 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 by the Appellate Division, Second, Department, 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, rather than issues that might eventually result in litigation.
With regard to the sufficiency of a motion to discuss litigation, it has been held that:
"It is insufficient to merely regurgitate the statutory language; to wit, 'discussions regarding proposed, pending or current litigation'. This boilerplate recitation does not comply with the intent of the statute. To validly convene an executive session for discussion of proposed, pending or current litigation, the public body must identify with particularity the pending, proposed or current litigation to be discussed during the executive session" [Daily Gazette Co. , Inc. v. Town Board, Town of Cobleskill, 44 NYS 2d 44, 46 (1981), emphasis added by court].
The Daily Gazette decision was recently cited by the Appellate Division, Third Department, in which one of the issues involved the adequacy of a motion to conduct an executive session to discuss what was characterized as "a personnel issue." Specifically, it was held that:
"...the public body must identify the subject matter to be discussed (see, Public Officers Law § 105 , and it is apparent that this must be accomplished with some degree of particularity, i.e., merely reciting the statutory language is insufficient (see, Daily Gazette Co. v Town Bd., Town of Cobleskill, 111 Misc 2d 303, 304-305). Additionally, the topics discussed during the executive session must remain within the exceptions enumerated in the statute (see generally, Matter of Plattsburgh Publ. Co., Div. of Ottaway Newspapers v City of Plattsbrugh, 185 AD2d §18), and these exceptions, in turn, 'must be narrowly scrutinized, lest the article's clear mandate be thwarted by thinly veiled references to the areas delineated thereunder' (Weatherwax v Town of Stony Point, 97 AD2d 840, 841, quoting Daily Gazette Co. v Town Bd., Town of Cobleskill, supra, at 304; see, Matter of Orange County Publs., Div. of Ottaway Newspapers v County of Orange, 120 AD2d 596, lv dismissed 68 NY2d 807).
"Applying these principles to the matter before us, it is apparent that the Board's stated purpose for entering into executive session, to wit, the discussion of 'a personnel issue', does not satisfy the requirements of Public Officers Law § 105 (1) (f). The statute itself requires, with respect to personnel matters, that the discussion involve the 'employment history of a particular person' (id. [emphasis supplied]). Although this does not mandate that the individual in question be identified by name, it does require that any motion to enter into executive session describe with some detail the nature of the proposed discussion (see, State Comm on Open Govt Adv Opn dated Apr. 6, 1993), and we reject respondents' assertion that the Board's reference to 'a personnel issue' is the functional equivalent of identifying 'a particular person'."
Based upon the foregoing, I believe that there is judicial authority indicating that motions for entry into executive session cannot validly be as general as the Village Attorney has suggested.
I hope that I have been of some assistance.
Robert J. Freeman
cc: Robert A. Spolzino, Village Attorney
Board of Trustees