February 27, 1997
Mr. Jonathan Heidelberger
Ingerman Smith, L.L.P.
167 Main Street Northport, NY 11768
Dear Mr. Heidelberger:
I have received your thoughtful letter of January 30 in which you commented with respect to an advisory opinion prepared on January 8 at the request of Gerard Fishberg.
It is your contention that your client, the Board of Education of the Levittown Public Schools, may limit the opportunity to speak at its meetings to residents of the District. I believe that we agree that the Board is not required in any way to permit public participation, and that the Board has the authority to adopt reasonable rules to govern its own proceedings. I continue to disagree, however, that a rule can distinguish among those who attend meetings in the manner prescribed by the Board.
It is reiterated that the Open Meetings Law provides a right to attend to the "general public"; a resident of East Meadow, Island Trees or even Albany would have the same right to attend a meeting of the Levittown Board of Education as a resident of the District. That being so, I do not believe that a public body could validly require that those who attend or seek to attend identify themselves by name, residence or interest. In short, it is my view that any member of the public has an equal opportunity to partake in an open meeting, and that an effort to distinguish among attendees by residence or any other qualifier would be inconsistent with the Open Meetings Law and, therefore, unreasonable. Moreover, as suggested in the opinion addressed to Mr. Fishberg, people other than residents, particularly those who own property or operate businesses in a community, may have a substantial interest in attending and expressing their views at meetings of boards of education and other public bodies. Prohibiting those people from speaking, even though they may have a significant tax burden, while permitting residents to do so, would, in my view, be unjustifiable.
With regard to the propriety of the executive session held to discuss "potential litigation", my intent was to reference the judicial interpretation of the Open Meetings Law, particularly since the leading decisions have been rendered by the Appellate Division, Second Department. Insofar as the Board might have discussed "litigation strategy", there would be no disagreement concerning the Board's ability to conduct a proper executive session.
If you would like to discuss the matter, please feel free to contact me. I hope that I have been of assistance.
Robert J. Freeman
cc: Gerard Fishberg