November 26, 1997
Mr. Ronald P. Bennett
Bennett, DiFilippo & Kurtzhalts
Two North Main Street
Holland, NY 14080-0345
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. Bennett:
I have received your letter of October 20 and appreciate your kind words.
In your capacity as attorney for the Town of Eagle, you described a series of events relating to the implementation of a local law under which an applicant for the operation of a landfill provides certain benefits to the Town in consideration for the issuance of the permit. Following the receipt of responses to a request for proposals, a particular firm was selected as the preferred proposer. Notwithstanding extensive negotiations, the firm selected withdrew its proposal and "threatened litigation" based on a contention that the Town failed to negotiate in good faith. Subsequently, the firm submitted a new proposal and again threatened litigation unless the Town accepted it. In June, the firm served a notice of claim upon the Town, but since then, it has done nothing further in pursuance of its proposal. Most recently, a second applicant has expressed a willingness to negotiate an agreement in accordance with the local law.
Your initial question in relation to the foregoing is whether the Town may negotiate with the proposers in executive session. You noted that "[w]ith two (2) competing interests, the Town cannot negotiate if each party knows what the other party has offered and the position of the Town in what it would accept to issue the permit and Host Community Agreement." You also asked, since the Town has been served with a notice of claim, whether the Town may negotiate with either proposer in executive session in an effort "to resolve the question of litigation and to reach an acceptable agreement."
In this regard, I offer the following comments.
As you are aware, the Open Meetings Law is based upon a presumption of openness. Stated differently, meetings must be conducted open to the public, except to the extent that the subject matter may properly be considered during an executive session. Paragraphs (a) through (h) of §105(1) of that statute specify and limit the subjects that may properly be discussed during an executive session.
Relevant to the matter is §105(1)(d) of the Open Meetings Law, 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, so as not to divulge its strategy to its adversary.
From my perspective, many issues may relate to litigation, but they may not involve consideration or disclosure of a public body's strategy in litigation. In view of the thrust of judicial interpretations of the Open Meetings Law, the exceptions that authorize closed sessions should be construed narrowly [see e.g., Gordon v. Village of Monticello, Supreme Court, Ulster County, August 5, 1993, modified, 207 AD 2d 55 (1994); reversed on other grounds, 87 NYS 2d 124 (1995); Holden v. Board of Trustees of Cornell University, 440 NYS 2d 58; aff'd 80 AD 2d 378 (1981)]. In the case of the litigation exception, only to the extent that a discussion involves issues focusing on litigation and litigation strategy would an executive session, in my opinion, be proper.
In the context of your inquiry, if a discussion concerning the agreement is so intertwined with consideration of the Town's litigation strategy that it is impossible to consider one without the other, it is likely in my view that a court would find an executive session to be justified. I note that however, that the Concerned Citizens decision cited above dealt with an executive session held to attempt to settle litigation, and that the court determined that an executive session could not validly be held with the adversary in litigation present at the executive session. Therefore, it appears that an executive session to discuss litigation could not validly be held with the adversary in the litigation present.
The other provision of significance is §105(1)(f), which 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..."
In my opinion, it is doubtful that a court would find that discussions leading to the granting of a permit could be equated with a "matter leading to the... employment...of a particular...corporation." However, in the course of negotiations and discussions relating to the matter, various elements of the issues considered might involve the "financial [or] credit history of a particular...corporation." To that extent, I believe that executive sessions could properly be held pursuant to §105(1)(f).
I hope that I have been of assistance.
Robert J. Freeman