February 12, 1998
Ms. Michelle Breidenbach
Madison County Bureau
601 Lakeport Road
Chittenango, NY 13037
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, unless otherwise indicated.
Dear Ms. Breidenbach:
I have received your letter of January 20 in which you requested an advisory opinion in relation to several questions concerning the interpretation of the Open Meetings Law.
First, you asked whether a town and village board may conduct executive sessions to discuss "pending litigation" if their intention is "to discuss a lawsuit to which they are not a party." You referred to and executive session held, apparently jointly, by the Lenox Town Board and the Canastota Village Board of Trustees "to discuss Oneida Indian land claim negotiations, which are currently being held between the Indians and the state and county governments."
In this regard, as a general matter, the Open Meetings Law is based on a presumption of openness. Stated differently, the Law requires that meetings of public bodies be conducted in public, except to the extent that a closed or executive session may properly be held. Paragraphs (a) through (h) of §105(1) of the Law specify and limit the subjects that may be considered in an executive session, and it is clear in my view that those provisions are generally intended to enable public bodies to exclude the public from their meetings only to the extent that public discussion would result in some sort of harm, perhaps to an individual in terms of the protection of his or her privacy, or to a government in terms of its ability to perform its duties in the best interests of the public.
The provision pertaining to litigation, §105(1)(d), permits a public body to enter into executive session to discuss "proposed, pending or current litigation." While the courts have not sought to define the distinction between "proposed" and "pending" or between "pending" and "current" litigation, they have provided direction concerning the scope of the exception in a manner consistent with the description of the general intent of the grounds for entry into executive session suggested in my remarks in the preceding paragraph, i.e., that they are intended to enable public bodies to avoid some sort of identifiable harm. Specifically, it has been held that:
"The purpose of paragraph d 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.
In the situation that you described, neither the Town nor the Village is party to the litigation that is the subject of the discussion. If that is so, it does not appear that §105(1)(d) would serve as a basis for conducting an executive session.
Second, you questioned whether the same boards may "go into executive session for 'contracts' to discuss the possibility of a service contract with the Oneida Indian Nation." Although some issues relating to "contracts" or "contract negotiations" may be considered in executive session, the ability to do so, in my view, is limited. The only provision that pertains specifically to contract negotiations, §105(1)(e), deals with collective bargaining negotiations between a public employer and a public employee union under Article 14 of the Civil Service Law, which is commonly known as the Taylor Law.
There is, however, a different ground for entry into executive session that may, depending upon the nature of the discussion, be asserted to discuss certain matters pertaining to contract negotiations. Section 105(1)(f) authorizes 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 some instances, a public body's discussion might focus on the financial or credit history of a particular corporation, for example. To the extent that a discussion involves such matters, I believe that an executive session could properly be held. I am unaware of whether the Indian Nation has created a "corporation." However, since the matter involves a service contract, it would appear that the Indian Nation is acting in the capacity of a business entity and that §105(1)(f) may be pertinent.
Third, you asked whether there is a requirement that both the Village and the Town Board must "notify the public about a joint public meeting." In this regard, in a landmark decision rendered in 1978, the Court of Appeals found that any gathering of a quorum of a public body for the purpose of conducting public business is a "meeting" that must be convened open to the public, whether or not there is an intent to take action and regardless of the manner in which a gathering may be characterized [see Orange County Publications v. Council of the City of Newburgh, 60 AD 2d 409, aff'd 45 NY 2d 947 (1978)].
I point out that the decision rendered by the Court of Appeals was precipitated by contentions made by public bodies that so-called "work sessions" and similar gatherings held for the purpose of discussion, but without an intent to take action, fell outside the scope of the Open Meetings Law. In discussing the issue, the Appellate Division, whose determination was unanimously affirmed by the Court of Appeals, stated that:
"We believe that the Legislature intended to include more than the mere formal act of voting or the formal execution of an official document. Every step of the decision-making process, including the decision itself, is a necessary preliminary to formal action. Formal acts have always been matters of public record and the public has always been made aware of how its officials have voted on an issue. There would be no need for this law if this was all the Legislature intended. Obviously, every thought, as well as every affirmative act of a public official as it relates to and is within the scope of one's official duties is a matter of public concern. It is the entire decision-making process that the Legislature intended to affect by the enactment of this statute" (60 AD 2d 409, 415).
The court also dealt with the characterization of meetings as "informal," stating that: "The word 'formal' is defined merely as 'following or according with established form, custom, or rule' (Webster's Third New Int. Dictionary). We believe that it was inserted to safeguard the rights of members of a public body to engage in ordinary social transactions, but not to permit the use of this safeguard as a vehicle by which it precludes the application of the law to gatherings which have as their true purpose the discussion of the business of a public body" (id.). It has also been held that a joint meeting of majorities of two public bodies is subject to the Open Meetings Law [Oneonta Star v. Board of Trustees of Oneonta School District, 66 AD 2d 51 (1979)], and that a planned meeting of a public body held at the invitation of a non-member would constitute a "meeting" subject to the requirements of the Open Meetings Law [see Goodson-Todman v. Kingston, 153 Ad 2d 103, 105 (1990)]. Further, the Open Meetings Law requires that notice be posted and given to the news media prior to every meeting of a public body, such as a board of education. Specifically, §104 of that statute provides that: "1. Public notice of the time and place of a meeting scheduled at least one week prior thereto shall be given to the news media and shall be conspicuously posted in one or more designated public locations at least seventy-two hours before each meeting. 2. Public notice of the time and place of every other meeting shall be given, to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a reasonable time prior thereto. 3. The public notice provided for by this section shall not be construed to require publication as a legal notice." Stated differently, if a meeting is scheduled at least a week in advance, notice of the time and place must be given to the news media and to the public by means of posting in one or more designated public locations, not less than seventy-two hours prior to the meeting. If a meeting is scheduled less than a week an advance, again, notice of the time and place must be given to the news media and posted in the same manner as described above, "to the extent practicable", at a reasonable time prior to the meeting. And fourth, you asked whether the Village and Town Boards may "hold a meeting on private property." There is nothing in the Open Meetings Law that specifies where meetings may be held. The only provision that deals somewhat directly with the issue is §103(b), which states that public bodies must make or cause to made reasonable efforts to hold meetings in locations that offer barrier-free access to physically handicapped persons. Perhaps equally pertinent is §100 of the Open Meetings Law, the Legislative Declaration, which states that: "It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of an able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy. The people must be able to remain informed if they are to retain control over those who are their public servants. It is the only climate under which the commonweal will prosper and enable the governmental process to operate for the benefit of those who created it." As such, the Open Meetings Law confers a right upon the public to attend and listen to the deliberations of public bodies and to observe the performance of public officials who serve on such bodies. From my perspective, every provision of law, including the Open Meetings Law, should be implemented in a manner that gives reasonable effect to its intent. Whether a meeting is held on public or private property, to give reasonable effect to the law, I believe that meetings should be held in locations in which those likely interested in attending have a reasonable opportunity to do so. Lastly, if my recollection is accurate, I have received one or more telephone calls from one or both of the municipalities whose activities are the subject of your inquiry. As I understand the situation, the Boards may be in something of a "catch-22." While they may have every intention of complying with the Open Meetings Law, I recall being informed that representatives of the Indian Nation would meet only on their property and only in private. In that kind of situation, should the Boards want to resolve problems, engage in agreements and the like by conferring with representatives of the Indian Nation, they may essentially be forced to violate the Open Meetings Law. My hope is that this opinion, copies of which will be sent to both the Town Board and the Village Board of Trustees, will provide the Indian Nation and others an indication of the responsibilities imposed upon governmental bodies in New York. Also, and I am not suggesting this as a means of circumventing the Open Meetings Law, the Town and the Village could send representatives from their boards to meet with representatives of the Indian Nation. If less than a majority of those boards attends, the Open Meetings Law would not, in my opinion, be applicable. I hope that I have been of assistance. Sincerely, Robert J. Freeman Executive Director RJF:jm cc: Town Board, Town of Lenox Board of Trustees, Village of Canastota