February 3, 1995
Ms. Betty A. Loriz
156 Castle Hill Road
Parksville, NY 12768-5112
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 Ms. Loriz:
I have received your letters of December 31 and January 2 in which you raised a series of issues relating to a meeting of the Liberty Central School District Board of Education on January 2.
According to your letter:
"There was a pledge to the flag and then a motion was made to enter executive session. There was no agenda available and no public participation. The public was abused again!
"The residents who attended were informed that the newspaper notice in the Times Herald-Record served as the board's agenda. Please note, however, that the newspaper notice does not state specifically which unions or groups of employees; does not give the date of the meeting (states only Monday); does not state that the meeting is a 'special' meeting. Also, the Sullivan County Democrat is the official school newspaper and no announcement was made in the newspaper.
"Was this a legal meeting? Is it proper for a school board to hold a 'public' meeting and then ask the public, who traveled through dangerous ice and snow, to leave immediately after an 'executive session' is declared? Is it legal not to have an agenda for a 'special' meeting? Is it legal to hold a board meeting on a holiday when the school is officially closed? Is it legal to state in an announcement: 'The board 'expects' to hold an executive session for the discussion'?
"Mr. Pagnucco keeps referring to radio announcements which I don't believe are considered legal notifications for board meetings. I would appreciate clarification of this issue also. Doesn't the 72-hour law refer to official newspaper notification?"
In this regard, I offer the following comments.
First, although a public body is required to give notice of the time and place of a meeting to the news media, there is no requirement that the news media publish the notice or publicize the meeting. Further, if a newspaper, for example, chooses to print a notice of the meeting, there is no requirement that the notice consist of a verbatim duplication of the notice that the paper received. Consequently, the notice that you see in print or hear on the radio may not be precisely what was given to the news media.
It is also noted that the Open Meetings Law does not specify which news media must receive notice. In my view, a public body may comply with the Open Meetings Law by providing notice to a local radio station in accordance with §104 of the Law.
Second, the Open Meetings Law makes no reference to agendas, and I know of no law that requires the preparation of an agenda, that deals with the degree of detail in an agenda, or that compels a public body to follow its agenda exactly.
Similarly, while the Open Meetings Law clearly provides the public with the right "to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy" (see Open Meetings Law, §100). The Law is silent with respect to the issue of public participation. Consequently, by means of example, if a public body does not want to answer questions or permit the public to speak or otherwise participate at its meetings, I do not believe that it would be obliged to do so. On the other hand, a public body may choose to answer questions and permit public participation, and many do so. When a public body does permit the public to speak, I believe that it should do so based upon reasonable rules that treat members of the public equally.
Third, with regard to the legality of a meeting held on a holiday or when school is closed, again, the Open Meetings Law is silent on the matter. Although §24 of the General Construction Law enumerates certain days as "public holidays", I an unaware of any statute or judicial decisions that deal specifically with the issue of a public body's authority to conduct a meeting on a holiday or a weekend day. I have found a summary of an opinion rendered by the State Comptroller in which it was advised that a town is not legally obligated to close its offices on the holidays designated in §24 of the General Construction Law, and that a town board has discretionary authority to close town offices in observation of those holidays (see 1985 Opinion of the State Comptroller, 85-33). In my view, due to the absence of specific statutory guidance, it appears that a public body may in its discretion conduct meetings on public holidays or weekends, so long as it complies with the applicable provisions of law, such as the Open Meetings Law. I point out, too, that many public bodies conduct organizational meetings on January 1, which is a public holiday.
Lastly, 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. Section 105(1) of the Law states 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..."
From my perspective, the purpose and intent of the foregoing are clear: the public should have the right to know when a public body enters into an executive session, and that there is a proper basis for so doing. Consequently, a motion to conduct an executive session must be made in public and it must include reference to the subject or subjects to be considered behind closed doors.
Often public bodies or their staffs have the capacity to recognize in advance of a meeting that a topic to be considered at a meeting falls within one or more of the grounds for entry into executive session. In those kinds of situations, in consideration for the public, some have sought to schedule executive sessions so that members of the public will know in advance that they need not attend while an executive session is ongoing. As expressed in an earlier opinion addressed to you, technically, I do not believe that a public body can know with certainty that an executive session will be held. In short, it cannot be known with certainty that a motion to enter into an executive session will indeed be carried. For those reasons, I advised as I did, that a public body cannot schedule an executive session. However, in consideration of the public and to encourage technical compliance with the Open Meetings Law, it has also been advised that a public body may in its notice indicate that a motion to enter into executive session may be made to discuss a certain topic. When it is known that a certain topic will in fact be considered and that there is a basis for discussing that topic in executive session, the practice that you described would in my opinion be unobjectionable and consistent with the Open Meetings Law. 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: Board of Education
Richard P. Beruk, Superintendent