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December 7, 1998

 

Hon. James M. Corrigan
Trustee
60 Franklin Street
Northport, NY 11768

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 Trustee Corrigan:

I have received your letter of November 5. You have requested an opinion
concerning the propriety of conducting an executive session to discuss "contractual matters."

You wrote that the Village of Northport has an agreement with the Town of
Huntington to process sewage for the Town, and that a private entity contacted the Village
attorney to seek permission to connect with your waste collection system. Your attorney's
report was the subject of the executive session. In relation to the foregoing, you wrote that:

"No negotiations had yet taken place and we did not discuss
the financial status of the private concern at any time, nor the
cost of our providing the service to this concern. We did
discuss, however, the fact that our treatment plant does not
have the capacity to process their additional sewerage and that
way would have to be found to reduce our plant's load before
we could agree to take on additional hook-ups, especially the
size of a nursing facility. A suggestion was made and our
attorney was instructed by the Board to initiate discussions on
the matter using the suggested solution."

In this regard, I offer the following comments.

First, as you are likely aware, the Open Meetings Law requires that meetings of public
bodies must be conducted open to the public, unless there is a basis for entry into an executive
session. The subjects that may properly be considered in executive session are specified in
paragraphs (a) through (h) of §105(1) of the Open Meetings Law. Because those subjects
are limited, a public body cannot conduct an executive session to discuss the subject of its
choice.
Second, although certain "contractual matters" may be conducted or discussed in
executive session, not all such matters fall within the grounds for entry into executive session.
The only provision that pertains specifically to contracts, §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. In short, it does
not appear that §105(1)(e) or any of the grounds for entry into executive would have been
pertinent.

Notwithstanding the foregoing, there is a different aspect of the Open Meetings Law that might have permitted a private discussion of the issue. A second 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.

Potentially 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 requires that
a motion to enter into executive session, citing the reason, must be made and carried in public. In the case of the latter, when a 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.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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