NY.gov Portal State Agency Listing

 

December 28, 1999

OML-AO-3100

The staff of the Committee on Open Government is authorized to issue advisory opinions.
The ensuing staff advisory opinion is based solely upon the facts presented in your
correspondence.

Dear Mr. Stolzer:

I have received your letter of November 16 in which you seek an advisory opinion
under the Open Meetings Law in response to the following question:

"Whether a town board member may be excluded from a meeting between other town board members and legal counsel where that meeting is to obtain advice regarding pending
litigation and where the excluded member is a separately named defendant in the litigation with a conflict of interest and separate counsel?"

You referred to an opinion rendered 1992 involving a similar issue, and you asked
whether the principles offered therein would be applicable to the facts presented in your
letter. In my view, those principles would be applicable in the context of the situation that
you described.

As you are aware, I have received correspondence from Mr. Jason L. Abelove, the
attorney for the "excluded member", who has contended that the member has the right to be
present.

By way of background, a legal action brought by a Town employee against the Town
in which the plaintiff alleges, among other claims, that he/she was "was sexually harassed by
a Town Councilwoman. The Councilwoman is named in the suit as a defendant "in her
official and individual capacities." She has written to the Town Attorney and to your firm,
acting as special counsel, and has expressed the view that "there exists a legal conflict of
interest between the interests of my fellow Town Board members and you, and the Town and myself." Further, although the Town and Councilwoman are co-defendants in the litigation, you indicated that she has requested and the Town has authorized separate counsel, for she has admitted that she has "separate interests in the litigation." You also pointed out that one of the claims involves libel, and that the Town's defenses to those claims "will be in direct conflict with those of the Councilwoman."

In view of the foregoing, it is your view that the Councilwoman may be excluded form meetings between the remaining four members of the Board and their legal counsel for
the purpose of discussing legal strategy and seeking legal advice. In short, it is your belief
that "it would be adverse to its interests for the Town to be required to waive its attorney-
client confidences and disclose litigation strategy and advice by allowing the Councilwoman
to attend the meetings with its own separate legal counsel.:"

As suggested earlier, I believe that the Councilwoman may be excluded from the gatherings described in the preceding paragraph based on the principles offered in the opinion
referenced earlier. To reiterate those points, I offer the following remarks, most of which
appeared in that opinion.

Specifically, the Open Meetings Law provides two vehicles under which the public, in appropriate circumstances, may be excluded from meetings of public bodies. One is an
executive session, a portion of an open meeting during which the public may be excluded
[see Open Meetings Law, §102(3)]. Members of a public body have the right to attend
executive session of the body [see §105(2)].

Relevant to the issue that you raised is §105(1)(d) of the Open Meetings Law, which permits a public body to enter into an executive session to discuss "proposed, pending or
current litigation". In construing the language quoted above, it has been held that:

"The purpose of paragraph d is "to enable 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.

The other vehicle that authorizes private discussion arises under §108 of the Open Meetings Law. Section 108 contains three "exemptions", and if a matter is "exempted" from the Open Meetings Law, that statute is not applicable.

Pertinent to the situation that you described 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, the communications made pursuant to that relationship are considered confidential under §4503 of the Civil Practice Law and
Rules. Consequently, 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.

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 (1989); 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)].

Therefore, insofar as the Town Board seeks legal advice from its attorney and the attorney
offers legal advice, the communications between the Board and the attorney would, in my
opinion, have been confidential and outside the coverage of the Open Meetings Law.

Further, to the extent that you, or the Town Attorney discuss litigation strategy, provide legal advice to or otherwise engage in an attorney-client relationship with your clients, the four members of the Board, the disclosure of which to the councilwoman would be adverse to the interests of the Town, I believe that your communications would be privileged and therefore, outside the requirements of the Open Meetings Law. In that kind of situation, I believe that the councilwoman could be excluded from the gathering, for based upon the facts, she could not be characterized as your client, but rather as an adversary in the litigation. In my opinion, the exclusion of the councilwoman would be consistent with the
thrust of decisional law concerning the intent of §105 (1)(d), the "litigation" exception for
entry into executive session.

Lastly, I disagree with Mr. Abelove's contentions. The opinion of the Attorney General (Opn. No. I 97-32) in my view generally stands for the notion that a member of a public body who is named individually in a lawsuit against that body or the municipality it serves generally cannot be excluded from a meeting of the public body. That would be so according to the opinion when " the members' interests appear... to coincide with that of the
board", and I concur. However, the opinion also specified that "[i]f at any time during the
course of the litigation, a board member's interests are at odds with those of the [board or
municipality], recusal may be necessary."

Based on the facts that you provided, insofar as the Councilwoman's interests may be "at odds" with those of the Town, it is reiterated that the other members of the Board may meet, in my opinion, without her presence based on the assertion of the attorney-client
privilege.

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

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Jason L. Abelove