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October 16, 1998

Mr. Michael D. Zarin, Esq.
Zarin & Steinmetz
81 Main Street, Ste. 415
White Plains, NY 10601

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 Mr. Zarin:

I have received your letter of October 13. You made reference to an advisory opinion
rendered on October 5 at the request of Ms. Kate Boylan, a reporter for the Rockland Journal News, and an article based on that opinion in which it was written that the Sloatsburg Village Board of Trustees had "wrongly shut its doors." You have asked for a clarification of that opinion in view of the information that you presented in your capacity as attorney for the Village.

Since you stated that you did not see the letter sent to me by Ms. Boylan, I have enclosed a copy. In brief, she referred to a closed meeting held in advance of a scheduled meeting, and stated that the Mayor "cited the possibility of a lawsuit as the reason for calling the closed session." You wrote that the Board has been considering, for more than a year, an amendment to a local law establishing planned residential zoning districts, that a "well-organized group" represented by counsel has opposed the amendment, and that the process
has been "contentious". Due to various oral and written challenges by the group throughout
the review process, you indicated that you "proposed a meeting in executive session...prior
to the public meeting", and that the "express purpose was limited to offering legal opinion and advice to the Village Board concerning the particular legal issues that had been raised" by the organization in opposition. You added that you "considered it necessary to discuss
preliminary litigation strategy in connection with what [you] reasonably predicted would be
future proposed litigation challenging the adoption of the amendment and the sufficiency of
the SEQRA review process."

From my perspective, part of the difficulty involves the use and application of certain terms that might have been somewhat misleading. In this regard, I offer the following comments.

First, having reviewed the opinion prepared at the request of Ms. Boylan, its essence in my view involves a single sentence. In considering the parameters of §105(1)(d) of the Open Meetings Law, which authorizes a public body to conduct an executive session to discuss "proposed, pending or current litigation", it was advised that "the exception is intended to permit a public body to discuss its litigation strategy behind closed doors, rather than issues that might possibly result in litigation." I do not believe that the opinion stated that the Board "wrongly shut its doors"; rather, the opinion referred to judicial interpretations of the Open Meetings Law and sought to describe the extent to which an executive session could properly have been held.

In discussing the matter with Ms. Boylan after her receipt of the opinion, one of the issues pertained to the ability to conduct an executive session under §105(1)(d) if no litigation
has yet been commenced. It was explained that, in my opinion, even if no litigation has been
initiated, there may be situations in which a public body might discuss litigation strategy in
an effort to prepare for or perhaps avoid a lawsuit. It was also suggested that if a public body is discussing a contentious issue and believes that taking certain courses of action might result in litigation, but it is not yet discussing what its legal strategy would be should it be sued, it would not yet have a basis for entry into executive session.

With respect to the application of terminology, I point out that there are two vehicles that may authorize a public body to discuss public business in private. One involves entry into an executive session. As you are aware and as indicated in the response to Ms. Boylan, §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. In short, prior to conducting an executive session, a motion must be made that includes reference to the subject or subjects to be discussed, and it must be carried by majority vote of a public body's membership.

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 operate 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. Further, although executive sessions may be held only for particular purposes, there is no such limitation that relates to matters that are exempt from the coverage of the Open Meetings Law.

Relevant to the situation is §108(3), which exempts from the Open Meetings Law:

"...any matter made confidential by federal or state law."

When an attorney-client relationship has been invoked, it is considered confidential under
§4503 of the Civil Practice Law and Rules. Therefore, if an attorney and client establish a
privileged relationship, the communications made pursuant to that relationship would in my
view be confidential under state law and, therefore, exempt from the Open Meetings Law.

In terms of background, it has long been held that a municipal board may establish a
privileged relationship with its attorney [People ex rel. Updyke v. Gilon, 9 NYS 243 (1889); Pennock v. Lane, 231 NYS 2d 897, 898 (1962)]. However, such a relationship is in my opinion operable only when a municipal board or official seeks the legal advice of an attorney acting in his or her capacity as an attorney, and where there is no waiver of the privilege by the client.

In a judicial determination that described the parameters of the attorney-client relationship and the conditions precedent to its initiation, it was held that:

"In general, 'the privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services (iii) assistance in some legal proceedings, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client'" [People v. Belge, 59 AD 2d 307, 399, NYS 2d 539, 540 (1977)].

Insofar as the Board seeks legal advice from its attorney and the attorney renders legal
advice, I believe that the attorney-client privilege may validly be asserted and that
communications made within the scope of the privilege would be outside the coverage of the Open Meetings Law. Therefore, even though there may be no basis for conducting an
executive session pursuant to §105 of the Open Meetings Law, a private discussion might
validly be held based on the proper assertion of the attorney-client privilege pursuant to §108.
For example, legal advice may be requested even though litigation or possible litigation is not an issue. In that case, while the litigation exception for entry into executive session would not apply, there may be a proper assertion of the attorney-client privilege.

I note that the mere presence of an attorney does not signify the existence of an attorney-client relationship; in order to assert the attorney-client privilege, the attorney must in my view be providing services in which the expertise of an attorney is needed and sought.
Further, often at some point in a discussion, the attorney has stopped giving legal advice and a public body may begin discussing or deliberating independent of the attorney. When that point is reached, I believe that the attorney-client privilege has ended and that the body should return to an open meeting.

Lastly, although it is not my intent to be overly technical, as suggested earlier, the procedural methods of entering into an executive session and asserting the attorney-client
privilege differ. In the case of the former, the Open Meetings Law applies, and I believe that the advice offered in the opinion sent to Ms. Boylan would have been accurate based on the information that she provided, which in turn was apparently based on statements made by Village officials. In the case of the latter, because the matter is exempted from the Open Meetings Law, the procedural steps associated with conducting executive sessions do not apply. It is suggested that when a meeting is closed due to the exemption under
consideration, a public body should inform the public that it is seeking the legal advice of its
attorney, which is a matter made confidential by law, rather than referring to an executive
session.

If you would like to discuss the matter, please feel free to contact me. I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Hon. Samuel J. Abate, Mayor
Kate Boylan

enc.