Hon. Charles M. Swanick
Erie County Legislature
3200 Elmwood Avenue
Kenmore, NY 14217
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 Legislator Swanick:
You letter of December 23 addressed to Richard Rifkin, Executive Director of the NYS Ethics Commission, has been forwarded to the Committee on Open Government. As you may recall from our earlier communications, the Committee is authorized to advise with respect to the Open Meetings Law.
Attached to your letter are news articles describing a meeting of the Tonawanda City Council held to discuss a plan for a new supermarket. One article indicated that:
"Before its public session Tuesday, the Council held a closed meeting with county Industrial Development Agency Executive Director Ron Coan and City Attorney Joseph Cassata to see what could be done to save the project. Tops representatives also sat in, the Mayor said."
The article also states that:
"Cassata and [Mayor] Roth defended the decision to close the meeting. Cassata said that because he offered legal advice, the meeting could be closed. And Mrs. Roth said the executive session was legal because financial matters relating to Tops were discussed."
A second article states that in "a lengthy executive session before the Common Council's regular meeting", the City Attorney "said 'various legalities' concerning the Tops project were discussed with Tops officials."
I note that the City Attorney wrote to this office on January 5 at the direction of the Mayor and Common Council concerning the same meeting. His version of the incident is somewhat different from newspaper reports. Although both newspaper accounts referred to an executive session held prior to the meeting, the City Attorney, based on his recollection of the matter, wrote that a motion was made to conduct an executive session "at the open work session of the Common Council." Further, while both newspapers referred to "legal" matters as the justification offered by the City Attorney for entry into executive session, he wrote that one issue involved "a personnel matter for a particular person", and that the other pertained to "certain financial matters of Tops Market."
Not having been present, I cannot conjecture with respect to which series of facts may be most accurate. Nevertheless, I offer the following comments.
By way of background, the Open Meetings Law envisions two vehicles under which the public may be excluded from a meeting of a public body. One involves entry into an executive session. The phrase "executive session" is defined in §102(3) of the Open Meetings Law to mean a portion of an open meeting during which the public may be excluded. Further, §105(1) of the Law requires that a procedure be accomplished, during an open meeting, before an executive session may be held. Specifically, that provision 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..."
Based on the foregoing, an executive session is not separate from a meeting; rather it is a portion of an open meeting from which the public may be excluded. Further, a public body cannot conduct an executive session to discuss the subject of its choice; on the contrary, the ensuing provisions of §105(1) specify and limit the subjects that may properly be considered in executive session.
The other vehicle involves exemptions from the Open Meetings Law, which are delineated in §108. If a matter is exempt from the Open Meetings Law, the provisions of that statute do not apply. When an exemption applies, a public body may meet in private, and there is no requirement that the procedural steps necessary to conduct an executive session be followed.
Since one of the articles refers to legal advice rendered by the City Attorney, relevant to an analysis of the matter 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.
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)].
In this instance, representatives of Tops and Erie County Industrial Development Agency were present at the closed session. Since they could not be characterized as clients of the City Attorney, their presence in my view negated the capacity to exclude the public based on a contention that the discussion occurred in private based on the assertion of the attorney-client privilege. Therefore, the gathering in my opinion would not have been exempt from the Open Meetings Law.
The only basis for entry into executive session that would have justified closed session would have been §105(1)(f). That provision permits a public body to enter into 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..."
From my perspective, an executive session would properly have been held only insofar as that the discussion involved the financial or credit history of a particular corporation, Tops Market.
I hope that the foregoing serves to clarify your understanding of the Open Meetings Law and that I have been of assistance.
Robert J. Freeman
cc: Common Council
Joseph Cassata, City Attorney