December 22, 1997
Ms. Nancy B. Chase
Superintendent of Schools
Hoosick Falls Central School
P.O. Box 192
Hoosick Falls, NY 12090
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 Superintendent Chase:
I have received your letter of November 18. Please accept my apologies for the delay in response. As requested, enclosed is a copy of the correspondence from Mr. McCart.
You have raised questions relating the ability to discuss a variety of topics during executive sessions, as well as the nature of motions that might be appropriate to enter into executive sessions.
In this regard, I offer the following comments.
First, it is noted at the outset that there are two vehicles that may authorize a public body 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.
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 apply 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.
Of possible relevance to two of the items to which you referred, the hearing of grievances by the Board of Education and a Board hearing on an appeal rendered pursuant to §3214 of the Education Law, 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. The holding of 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, i 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."
Insofar as the proceedings to which you referred could be characterized as quasi-judicial, the Open Meetings Law, in my view, would not apply.
Also relevant is §108(3), which exempts from the Open Meetings Law"...any matter made confidential by federal or state law."
Here I direct your attention to the federal Family Educational Rights and Privacy Act ("FERPA", 20 USC §1232g) and the regulations promulgated pursuant to FERPA by the U.S. Department of Education. In brief, FERPA applies to all educational agencies or institutions that participate in funding or grant programs administered by the United States Department of Education. As such, it includes within its scope virtually all public educational institutions and many private educational institutions. The focal point of the Act is the protection of privacy of students. It provides, in general, that any "education record," a term that is broadly defined, that is personally identifiable to a particular student or students is confidential, unless the parents of students under the age of eighteen waive their right to
confidentiality, or unless a student eighteen years or over, a so-called "eligible student", similarly waives his or her right to confidentiality. The regulations promulgated under FERPA define the phrase "personally identifiable information" to include:
"(a) The student's name;
(b) The name of the student's parents or other family member;
(c) The address of the student or student's family;
(d) A personal identifier, such as the student's social security number or student number;
(e) A list of personal characteristics that would make the student's identity easily traceable; or
(f) Other information that would make the student's identity easily traceable" (34 CFR Section 99.3).
Based upon the foregoing, disclosure of students' names or other aspects of records that would make a student's identity easily traceable must in my view be withheld in order to comply with federal law. Further, the term disclosure is defined in the regulations to mean:
"to permit access to or the release, transfer, or other communication of education records, or
the personally identifiable information contained in those records, to any party, by any means, including oral, written, or electronic means."
In consideration of FERPA, if the Board discusses an issue involving personally identifiable information derived from a record concerning a student, I believe that the discussion would deal with a matter made confidential by federal law that would be exempt from the Open Meetings Law.
In the situations described above involving quasi-judicial proceedings and discussions identifiable to students, technically, the exclusions of the public would not be based on the assertion of a basis for entry into executive session, but rather exemptions from the Open Meetings Law. In those cases, it is suggested the Board might announce that it will be conducting a quasi-judicial proceeding or that it is discussing a matter made confidential by
federal law that is exempt from the Open Meetings Law.
With respect to the other matters that you described, three of the grounds for entry into executive session appear to be pertinent.
The provision 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
"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. With regard to the sufficiency of a motion to discuss litigation, it has been held that:
"It is insufficient to merely regurgitate the statutory language; to wit, 'discussions regarding proposed, pending or current litigation'. This boilerplate recitation does not comply with the intent of the statute. To validly convene an executive session for discussion of proposed, pending or current litigation, the public body must identify with particularity the pending, proposed or current litigation to be discussed during the executive session" [Daily Gazette Co. , Inc. v. Town Board, Town of Cobleskill, 44 NYS 2d 44, 46 (1981), emphasis added by court].
As such, a proper motion might be: "I move to enter into executive session to discuss our litigation strategy in the case of the XYZ Company v. the District."
If the Board seeks to discuss its litigation strategy regarding a matter not yet in court, and if the identification of the potential adversary would "tip your hand", I do not believe that the identity of the adversary would have be included in the motion. In that event, it is suggested that a motion for entry into executive session indicate that the Board will discuss litigation strategy in relation to a matter in which premature disclosure of the identity of the adversary would be detrimental to the interests of the District and its residents.
Perhaps the most frequently cited provision is the so-called"personnel" exception, §105(1)(f). I note that the term "personnel" appears nowhere in the Open Meetings Law and that the language of that provision is limited and precise. In terms of legislative history, as originally enacted, the provision in question permitted a public body to enter into an executive session to discuss:
"...the medical, financial, credit or employment history of any person or corporation, or
matters leading to the appointment, employment, promotion, demotion, discipline,
suspension, dismissal or removal of any person or corporation..."
Under the language quoted above, public bodies often convened executive sessions to discuss matters that dealt with "personnel" generally, tangentially, or in relation to policy concerns. However, the Committee consistently advised that the provision was intended largely to protect privacy and not to shield matters of policy under the guise of privacy.
To attempt to clarify the Law, the Committee recommended a series of amendments to the Open Meetings Law, several of which became effective on October 1, 1979. The recommendation made by the Committee regarding §105(1)(f) was enacted and states that a public body may enter into an 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..." (emphasis added).
Due to the insertion of the term "particular" in §105(1)(f), I believe that a discussion of "personnel" may be considered in an executive session only when the subject involves a particular person or persons, and only when at least one of the topics listed in §105(1)(f) is considered.
It has been advised that a motion describing the subject to be discussed as "personnel" or "specific personnel matters" is inadequate, and that the motion should be based upon the specific language of §105(1)(f). For instance, a proper motion might be: "I move to enter into an executive session to discuss the employment history of a particular person (or persons)".
Such a motion would not in my opinion have to identify the person or persons who may be the subject of a discussion. By means of the kind of motion suggested above, members of a public body and others in attendance would have the ability to know that there is a proper basis for entry into an executive session. Absent such detail, neither the members nor others may be able to determine whether the subject may properly be considered behind closed
It is noted that the Appellate Division, Third Department, confirmed the advice rendered by this office. In discussing §105(1)(f) in relation to a matter involving the establishment and functions of a position, the Court stated that:
"...the public body must identify the subject matter to be discussed (See, Public Officers
Law § 105 ), and it is apparent that this must be accomplished with some degree of
particularity, i.e., merely reciting the statutory language is insufficient (see, Daily Gazette Co.
v Town Bd., Town of Cobleskill, 111 Misc 2d 303, 304-305). Additionally, the topics
discussed during the executive session must remain within the exceptions enumerated in the
statute (see generally, Matter of Plattsburgh Publ. Co., Div. of Ottaway Newspapers v City
of Plattsburgh, 185 AD2d §18), and these exceptions, in turn, 'must be narrowly
scrutinized, lest the article's clear mandate be thwarted by thinly veiled references to the
areas delineated thereunder' (Weatherwax v Town of Stony Point, 97 AD2d 840, 841,
quoting Daily Gazette Co. v Town Bd., Town of Cobleskill, supra, at 304; see, Matter of
Orange County Publs., Div. of Ottaway Newspapers v County of Orange, 120 AD2d
596, lv dismissed 68 NY 2d 807).
"Applying these principles to the matter before us, it is apparent that the Board's stated
purpose for entering into executive session, to wit, the discussion of a 'personnel issue', does
not satisfy the requirements of Public Officers Law § 105 (1) (f). The statute itself requires,
with respect to personnel matters, that the discussion involve the 'employment history of
a particular person" (id. [emphasis supplied]).
Although this does not mandate that the
individual in question be identified by name, it
does require that any motion to enter into executive session describe with some detail the
nature of the proposed discussion (see, State Comm on Open Govt Adv Opn dated Apr. 6,
1993), and we reject respondents' assertion that the Board's reference to a 'personnel issue'
is the functional equivalent of identifying 'a particular person'" [Gordon v. Village of
Monticello, 620 NY 2d 573, 575; 207 AD 2d 55 (1994)].
Based on the foregoing, a proper motion might be: "I move to enter into an executive session to discuss the employment history of a particular person (or persons)". Such a motion would not in my opinion have to identify the person or persons who may be the subject of a discussion [see Doolittle v. Board of Education, Supreme Court, Chemung County, July 21, 1981; also Becker v. Town of Roxbury, Supreme Court, Chemung County, April 1, 1983]. By means of the kind of motion suggested above, members of a public body and
others in attendance would have the ability to know that there is a proper basis for entry into an executive session. Absent such detail, neither the members nor others may be able to determine whether the subject may properly be considered behind closed doors.
If a discussion relating to a grievance does not involve a quasi-judicial proceeding, it might be required to be conducted in public, or §105(1)(f) might apply, depending on the subject matter. If the union has complained that the bells are ringing too late, I do not believe that there would be a basis for entry into executive session. On the other hand, if the grievance pertains to the health or medical condition of a particular person, it is likely that the
provision at issue would be applicable.
Lastly, with respect to "contract negotiations", the only ground for entry into executive session that mentions that term is §105(1)(e). That provision permits a public body to conduct an executive session to discuss"collective negotiations pursuant to article fourteen of the civil service law."
Article 14 of the Civil Service Law is commonly known as the "Taylor Law",
which, as you are aware, pertains to the relationship between public employers
and public employee unions. As such, §105(1)(e) permits a public body to
hold executive sessions to discuss collective bargaining negotiations with a
public employee union.
In terms of a motion to enter into an executive session held pursuant to §105(1)(e), it has been held that:
"Concerning 'negotiations', Public Officers
Law section 100[e] permits a public body
to enter into executive session to discuss collective negotiations under Article 14 of the
Civil Service Law. As the term 'negotiations' can cover a multitude of areas, we believe that
the public body should make it clear that the negotiations to be discussed in executive
session involve Article 14 of the Civil Service Law" [Doolittle, supra].
A proper motion might be: "I move to enter into executive session to discuss the collective bargaining negotiations involving the teachers union."
I hope that I have been of assistance. Should additional questions arise, please free to call me.
Robert J. Freeman