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September 2, 1997

Michael J. Hoblock, Jr.
Chairman
NYS Racing and Wagering Board
1 Empire State Plaza
12th Floor
Albany, NY 12223-1151

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 Chairman Hoblock:

I have received your letter of August 25 in which you sought my views concerning an investigation that is being conducted by the New York State Racing and Wagering Board ("the Board") and the Board's ability to consider the matter in executive session.

According to your letter, the Board is pursuing "an investigation of the financial and managerial practices of Capital District Regional Off-Track Betting Corporation" ("the Corporation"). You specified that "[r]esolution of the matters investigated may result in the discipline, suspension, dismissal or removal of the Corporation's directors or suspension of the Corporation itself." The Board has ordered the directors of the corporation to appear at Board offices to be questioned and you have asked whether the Board may conduct an executive session to enable its members to "view or participate in the questioning of the Corporation's directors." You focused on §§105(1)(c) and (f) of the Open Meetings Law as possible grounds for authorizing the holding of an executive session.

In this regard, as you are aware, the Open Meetings Law is based on a presumption of openness. Stated differently, a meeting of a public body, such as the Board, must be conducted in public, except to the extent that an executive session may be held in accordance with paragraphs (a) through (h) of §105(1) of the Open Meetings Law. Based upon the information that you provided, it would appear that §105(1)(f) would justify an executive session with respect to all or perhaps portions of the proposed session. The cited 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, insofar as the matter involves the discipline, suspension, dismissal or removal or a particular person, an executive session could justifiably be held. While there are no judicial decision of which I am aware involving the propriety of conducing an executive session to consider the suspension of a corporation in the context that you described, the language of §105(1)(f) would appear to authorize an executive session for that purpose.

The other basis for entry into executive session to which you referred, §105(1)(c), permits a public body to conduct an executive session to discuss:

"information relating to current or future investigation or prosecution of a criminal offense, which would imperil effective law enforcement if disclosed..."

The language quoted above is restricted to consideration by a public body regarding investigation or prosecution relating to a criminal offense. To the extent that the Board's inquiry pertains to a criminal investigation or prosecution, and public discussion would imperil effective law enforcement, §105(1)(f) could, in my opinion, properly be asserted.

I hope that I have been of assistance. Should any further questions arise, please feel free to contact me.

Sincerely,

Robert J. Freeman
Executive Director

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