December 11, 1998
Mr. Arthur Norden
78 Bauernfeind Road
Callicoon, NY 12723
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
Dear Mr. Norden:
I have received your letter of November 19. You referred to a portion of an earlier opinion in which it was advised that a board of education cannot take action in executive session, except in rare circumstances.
In an effort to acquire more precise guidance on the subject, you enclosed a portion
of the agreement between the Delaware Valley School District and its teachers association
involving containing grievance procedures and referred to a stipulation "that was signed after
the completion of stage 2." Stage 2 pertains to a situation in which a teacher is not satisfied
with a Stage 1 decision, in which case the Board of Education is required to hold a meeting
with the teacher or his or her representative. The agreement then states that "Within ten
calendar days after the conclusion of this meeting, the Board shall render a decision in writing to the teacher." You wrote that the "entire process took place out of public purview, and there are no meetings minutes memorializing the existence of this grievance, much less the action taken by the board."
In this regard, if indeed the grievance procedure was applicable, it is clear that the Board of Education was required to conduct a meeting and take action. If indeed action was taken, I believe that the Open Meetings Law requires that minutes indicating the nature of the action must be prepared. Further, any such action must in my view have been taken during an open meeting.
From my perspective, there are but two situations in which a board of education is
authorized to vote or take action in private. One involves a so-called 3020-a proceeding in
which a board must vote in executive session to determine whether charges should be filed
with respect to a tenured employee. The other generally pertains to situations involving
particular students, for certain federal laws prohibit the disclosure of information identifiable
to students without the consent of the parents (see e.g., Family Educational Rights and Privacy Act, 20 USC §1232g). Therefore, if, for instance, disciplinary action is taken concerning a particular student, I believe that a vote may be taken behind closed doors.
Similarly, in situations in which the vote may identify a handicapped student, I believe that,
due to requirements of federal law, a vote should occur in private. In those cases relating to
students, federal law prohibits the disclosure of information personally identifiable to a student, i.e., information that would make a student's identity "easily traceable" (see 34 CFR §99.3).
In my opinion, action taken by the Board in relation to a grievance would not represent one of the situations in which the Board would be authorized or required to vote in private.
Lastly, with respect to minutes of meetings, §106(1) of the Open Meetings Law states that:
"Minutes shall be taken at all open meetings of a public body
which shall consist of a record or summary of all motions,
proposals, resolutions and any other matter formally voted
upon and the vote thereon."
In sum, it appears that action should have been taken at a meeting, that it should have been taken in public, and that minutes reflective of the action should have been prepared.
I hope that I have been of assistance.
Robert J. Freeman
cc: Board of Education