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March 9, 1998




Mr. Gerald C. Crowell
Superintendent of Schools
Beaver River Central Schools
P.O. Box 179
Beaver Falls, NY 13305-0179

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. Crowell:

I have received your letter of February 13 in which you sought an advisory opinion concerning the Open Meetings Law.

According to your letter, the Board of Education of the Beaver River Central School recently interviewed candidates for the position of athletic director, but no notice was given prior to those gatherings. Thereafter, a candidate was selected and appointed at an ensuing meeting.

In conjunction with the foregoing, you have asked whether the Board was required to have given notice prior to the meeting held to interview the candidates, and if so, whether a failure to have done so would invalidate the Board's subsequent appointment. In addition, had the Board given notice, you asked whether the interviews could have been conducted in executive session.

In this regard, I offer the following comments.

First, in a landmark decision rendered in 1978, the Court of Appeals, that State's highest court, 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.).

Based upon the terms of the Open Meetings Law and its judicial interpretation, if a majority of the Board gathered to conduct public business, any such gathering would, in my opinion, have constituted a "meeting" subject to the Open Meetings Law.

Second, when there is an intent to conduct a meeting, the gathering must be preceded by notice given pursuant to §104 of the Open Meetings Law, convened open to the public and conducted in public as required by the Open Meetings Law. That provision states 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. Therefore, if, for example, there is a need to convene quickly, the notice requirements can generally be met by telephoning the local news media and by posting notice in one or more designated locations.

With respect to the enforcement of the Open Meetings Law, §107(1) of the Law states in part that:

"Any aggrieved person shall have standing to enforce the provisions of this article against a
public body by the commencement of a proceeding pursuant to article seventy-eight of
the civil practice law and rules, and/or an action for declaratory judgment and injunctive
relief. In any such action or proceeding, the court shall have the power, in its discretion,
upon good cause shown, to declare any action or part thereof taken in violation of this article
void in whole or in part."

However, the same provision states further that:

"An unintentional failure to fully comply with the notice provisions required by this article
shall not alone be grounds for invalidating any action taken at a meeting of a public body."

As such, when a legal challenge is initiated relating to a failure to provide notice, a key issue is whether a failure to comply with the notice requirements imposed by the Open Meetings Law was "unintentional". If indeed the Board's failure to provide notice was inadvertent and unintentional, such failure would not serve as basis for invalidating the Board's action.

Lastly, had the Board fully complied with the Open Meetings Law, I believe that it could have conducted the interviews in private. As a general matter, the Open Meetings Law is based upon a presumption of openness. Stated differently, meetings of public bodies must be conducted open to the public, unless there is a basis for entry into executive session. Moreover, 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 total 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.

Relevant to the matter is §105(1)(f) of the Open Meetings Law, which permits 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 circumstances, I believe that the Board would have considered the employment history of the candidates, and that the session would have involved a matter leading to the employment of a particular person.

I hope that the foregoing serves to clarify your understanding of the Open Meetings Law and that I have been of assistance.

Sincerely,


Robert J. Freeman
Executive Director

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