Ms. Kathy A. Ahearn
Counsel and Deputy Commissioner
for Legal Affairs
The State Education Department
Albany, NY 12234
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. Ahearn:
I have received your letter of January 5 and the materials attached to it. In your capacity as the State Education Department's Counsel and Deputy Commissioner for Legal Affairs, you have requested "an advisory opinion concerning certain actions taken by the New York State Board of Regents (the 'Regents') early Wednesday morning, January 3, 1996, in connection with a hearing held pursuant to Chapter 145 of the Laws of 1995."
Citing certain provisions of that statute, you wrote that "the Board of Regents is authorized to terminate the offices of the members of the Board of Education of Roosevelt Union Free School District if, after providing the board of education with an opportunity to be heard, the Regents find that the board of education has significantly failed to meet the goals of a corrective action plan approved by the Regents." You added that the statute does not specify the means by which an opportunity to be heard may be conferred, but that the Regents sought "to extend the broadest possible measure of due process to the board of education" and held a public hearing on January 2 in conjunction with an order to show cause that you issued at the direction of the Regents on December 18.
In describing the hearing, you wrote that the board of education was represented by counsel at the hearing, "who made an opening statement and submitted documentary exhibits and witness testimony on behalf of the board." Similarly, the District Review Panel, an entity created by Chapter 145 that recommended that the terms of office of the members of the board of education be terminated by the Regents, also presented witnesses and introduced documents into evidence. Further, a court reporter was present for the purpose of preparing a stenographic transcript of the proceeding.
Following testimony and closing arguments, which occurred in full view of the public and the news media and lasted some fourteen hours and into the morning of January 4, you indicated that "the Regents adjourned into private session to collectively weigh the evidence taken during the public hearing, apply the law, and reach a determination regarding the termination of the Roosevelt board members", and that as legal counsel, you joined the Regents to offer "legal advice on issues such as the weight to be accorded documents, standard of proof required in the statute, etc." At the conclusion of the deliberations, the Regents "decided unanimously, by a vote of 9 to 0, to terminate the offices of the members of the board of education", and you prepared an order to reflect that determination. Immediately thereafter, the Regents reconvened in the public hearing room, and the Chancellor informed those present that the Regents reached a determination, recounted the vote and read the order that you drafted.
You stated that the process of that evening was based on advice that you offered the Regents prior to the hearing that the Open Meetings Law did not apply to their deliberations. Specifically, you wrote that "[b]ased on the evidentiary nature of the hearing, the fact that the Regents were going to be called upon to apply the law to the facts that they had ascertained in public session and act much like a judge in a court of law, [you] opined that the proceeding was exempt from the coverage of the Open Meetings Law under Public Officers Law §108(1), as quasi-judicial in nature." Nevertheless, you wrote that some "are suggesting that the Board of Regents acted in violation of the Open Meetings Law by holding a secret meeting."
In this regard, based on your rendition of the facts as described in the preceding paragraphs, I offer the following comments.
It is noted initially that there are two vehicles that may authorize a public body, such as the Board of Regents, to discuss public business in private. One involves entry into an executive session. Section 102(3) of the Open Meetings Law defines the phrase "executive session" to mean a portion of an open meeting during which the public may be excluded, and the 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. Therefore, a public body may not conduct an executive session to discuss the subject of its choice.
As I understand the matter, it is unlikely that there would have been a basis for conducting an executive session. The only ground for entry into executive session that appears to relate to the issue before the Regents, §105(1)(f), authorizes a public body to conduct such a 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."
The language quoted above pertains to a variety of topics as they relate to a "particular person." In the instant case, it does not appear that the Regents focused on any specific member of the board of education. On the contrary, I believe that the issue involved the board as an entity, and the order to show cause that you enclosed referred repeatedly to failures of the board, rather than any individual member. If that is so, in my opinion, neither §105(1)(f) nor any other ground for entry into executive session could justifiably have been asserted.
The other vehicle for excluding the public from a meeting involves "exemptions." Section 108 of the Open Meetings Law contains three exemptions. When an exemption applies, the Open Meetings Law does not, and the requirements that would operate with respect to executive sessions are not in effect. Stated differently, to discuss a matter exempted from the Open Meetings Law, a public body need not follow the procedure imposed by §105(1) that relates to entry into an executive session. Further, although executive sessions may be held only for particular purposes, there is no such limitation that relates to matters that are exempt from the coverage of the Open Meetings Law.
Relevant to the matter is §108(1) of the Open Meetings Law, which exempts from the coverage of that statute "judicial or quasi-judicial proceedings..." From my perspective, it is often difficult to determine exactly when public bodies are involved in a quasi-judicial proceeding, or where a line of demarcation may be drawn between what may be characterized as quasi-judicial, quasi-legislative or administrative functions. Similarly, often provisions require that public hearings be held; others permit discretion to hold a public hearing. Further, the holding of public hearings and providing an opportunity to be heard does not in my opinion render a proceeding quasi-judicial in every instance. Those requirements may be present in a variety of contexts, many of which precede legislative action.
I believe that one of the elements of a quasi-judicial proceeding is the authority to take final action. While I am unaware of any judicial decision that specifically so states, there are various decisions that infer that a quasi-judicial proceeding must result in a final determination reviewable only by a court. For instance, in a decision rendered under the Open Meetings Law, it was found that:
"The test may be stated to be that action is judicial or quasi-judicial, when and only when, the body or officer is authorized and required to take evidence and all the parties interested are entitled to notice and a hearing, and, thus, the act of an administrative or ministerial officer becomes judicial and subject to review by certiorari only when there is an opportunity to be heard, evidence presented, and a decision had thereon" [Johnson Newspaper Corporation v. Howland, Sup. Ct., Jefferson Cty., July 27, 1982; see also City of Albany v. McMorran, 34 Misc. 2d 316 (1962)].
Another decision that described a particular body indicated that "[T]he Board is a quasi-judicial agency with authority to make decisions reviewable only in the Courts" [New York State Labor Relations Board v. Holland Laundry, 42 NYS 2d 183, 188 (1943)]. Further, in a discussion of quasi-judicial bodies and decisions pertaining to them, it was found that "[A]lthough these cases deal with differing statutes and rules and varying fact patterns they clearly recognize the need for finality in determinations of quasi-judicial bodies..." [200 West 79th St. Co. v. Galvin, 335 NYS 2d 715, 718 (1970)].
It is my opinion that the final determination of a controversy is a condition precedent that must be present before one can reach a finding that a proceeding is quasi-judicial. Reliance upon this notion is based in part upon the definition of "quasi-judicial" appearing in Black's Law Dictionary (revised fourth edition). Black's defines "quasi-judicial" as:
"A term applied to the action, discretion, etc., of public administrative officials, who are required to investigate facts, or ascertain the existence of facts, and draw conclusions from them, as a basis for their official action, and to exercise discretion of a judicial nature."
In the situation at issue, it appears that the proceeding could be characterized as quasi-judicial and that, therefore, the Regents' deliberations could properly have been conducted in private, outside the coverage of the Open Meetings Law. Again, the statute upon which the proceeding was based required notice and an opportunity to be heard, the parties provided testimony and documentary material submitted into evidence, and the Regents were empowered to make a final and binding determination. In short, the proceeding had many of the trappings or elements of a judicial proceeding and the Regents appeared to have carried out their duties in a manner analogous to a court.
Another exemption may also have been relevant. Section 108(3) exempts from the Open Meetings Law "any matter made confidential by federal or state law." When an attorney-client relationship has been invoked, it is considered confidential under §4503 of the Civil Practice Law and Rules. Therefore, 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 government board may establish a privileged relationship with its attorney [People ex rel. Updyke v. Gilon, 9 NYS 243 (1889); Pennock v. Lane, 231 NYS 2d 897, 898 (1962)]. However, such a relationship is in my opinion operable only when a government 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)].
Insofar as the Regents sought legal advice from you as its counsel and you rendered legal advice, I believe that the attorney-client privilege could validly have been asserted and that communications made within the scope of the privilege would have been outside the coverage of the Open Meetings Law.
Lastly, for the reasons expressed in the preceding commentary, I believe that the Regents had the authority to deliberate and to seek your legal advice in private and in a manner outside the scope of the Open Meetings Law. While its vote was confirmed in public, that vote, according to one judicial decision, should have been taken during an open meeting. As stated in Orange County Publications v. City of Newburgh:
"there is a distinction between that portion of a meeting...wherein the members collectively weigh evidence taken during a public hearing, apply the law and reach a conclusion and that part of its proceedings in which its decision is announced, the vote of its members taken and all of its other regular business is conducted. The latter is clearly non-judicial and must be open to the public, while the former is indeed judicial in nature, as it affects the rights and liabilities of individuals" [60 AD 2d 409, 418 (1978)].
I note our discussion of this issue and that I referred to the fact that public bodies often attempt to present themselves as being unanimous and that a ratification of a vote is often carried out in public. Nevertheless, if a unanimous ratification does not indicate how the members actually voted behind closed doors, the public may be unaware of the members' views on a given issue. You asserted, however, that in this proceeding, there was indeed unanimity on the part of the Regents in its vote, and that its unanimous confirmation of the matter, in public, with all Regents present, merely reflected the reality of that vote. Accordingly, the public, as a practical matter, appears to have the ability to know how individual Regents voted.
I hope that I have been of assistance. If you would like to discuss the matter further, please feel free to contact me.
Robert J. Freeman