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January 8, 1997

 

 

Mr. Gerard Fishberg
Cullen and Dykman
Garden City Center
100 Quentin Roosevelt Boulevard
Garden City, NY 11530-4850

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 Mr. Fishberg:

I have received your letter of December 5 in which you requested an opinion concerning the Open Meetings Law. Please accept my apologies for the delay in response.

According to your letter, you attended a meeting of the Levittown School District Board of Education on behalf of several residents of the District who asked you to represent them relative to matter of public interest. Anyone wishing to speak at the meeting was required "to list their name and address on a sign up sheet", and you signed your name and provided your office address in Garden City. You wrote, however, that when the Board president reached your name, he indicated that, pursuant to Board rules, you could not speak because you are not a resident. You objected, stating that you represented several residents and "opined that the denial of [your] right to speak was contrary to the Open Meetings Law." At that time, the Board president moved to enter into an executive session to discuss "potential litigation", and the motion was carried. Following the executive session, you were permitted to speak, but with the caveat that you would be given that privilege as an exception to the Board's rules and that your ability to do so would have no precedential effect.

In this regard, I offer the following comments.

First, although 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, 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. Nevertheless, 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 rules that treat members of the public equally.

While public bodies have the right to adopt rules to govern their own proceedings [see e.g., Education Law, §1709(1)], the courts have found in a variety of contexts that such rules must be reasonable. For example, although a board of education may "adopt by laws and rules for its government and operations", in a case in which a board's rules prohibited the use of tape recorders at its meetings, the Appellate Division found that the rule was unreasonable, stating that the authority to adopt rules "is not unbridled" and that "unreasonable rules will not be sanctioned" [see Mitchell v. Garden City Union Free School District, 113 AD 2d 924, 925 (1985)]. Similarly, if by rule, a public body chose to permit certain citizens to address it for ten minutes while permitting others to address it for three, or not at all, such a rule, in my view, would be unreasonable.

I note that §103 of the Open Meetings Law provides that meetings of public bodies are open to the "general public." As such, any member of the public, whether a resident of the District or of another jurisdiction, would have the same right to attend. That being so, I do not believe that a member of the public can be required to identify himself or herself by name or by residence in order to attend a meeting of a public body. Further, since any person can attend, I do not believe that a public body could by rule limit the ability to speak to residents only. There are many instances in which people other than residents, such as those who may own commercial property or conduct business and who pay taxes within a given community, attend meetings and have a signficant interest in the operation of a municipality or school district. Moreover, I believe that you served, in essence, as the residents' alter ego, and that precluding you from speaking would have been equivalent to prohibiting residents from speaking. In short, I do not believe that the Board could validly have prohibited you or anyone else from speaking at its meeting based upon residency.

Second, the provision in the Open Meetings Law 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 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. Since possible or "potential" litigation could be the subject or result of nearly any topic discussed by a public body, an executive session could not in my view be held to discuss an issue merely because there is a possibility of litigation.

Similarly, if the public is generally permitted to speak at meetings. I do not believe that public body could validly prohibit a person from speaking because of the possibility that he or she might at some point initiate litigation. That person's comments would divulge nothing concerning a public body's strategy in potential or eventual litigation.

In an effort to enhance compliance with and understanding of the Open Meetings Law, a copy of this opinion will be forwarded to the Board of Education.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Board of Education