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
I have received your letter of March 25.
Your first area of inquiry involves the designation of a deputy town supervisor. In
this regard, the advisory jurisdiction of the Committee on Open Government is limited to
matters relating to the Freedom of Information and Open Meetings Laws. Since this issue is
unrelated to those statutes, I regret that I cannot offer guidance.
The second question is whether a deputy supervisor can attend an executive session "when the supervisor is present." Relevant is §105(2), which provides that: "Attendance at
an executive session shall be permitted to any member of the public body and any other
persons authorized by the public body". Therefore, the only people who have the right to
attend executive sessions are the members of the public body conducting the executive
session. A public body may, however, authorize others to attend an executive session. While the Open Meetings Law does not describe the criteria that should be used to determine which persons other than members of a public body might properly attend an executive session, I believe that every law, including the Open Meetings Law, should be carried out in a manner that gives reasonable effect to its intent. Typically, those persons other than members of public bodies who are authorized to attend are the clerk, the public body's attorney, the superintendent in the case of a board of education, or a person who has some special knowledge, expertise or performs a function that relates to the subject of the executive session.
If there is a dispute concerning the attendance of a person other than a member of the town board at an executive session, I believe that the board could resolve the matter by adopting or rejecting a motion by a member to permit or reject the attendance by a non-member at an executive session.
I hope that I have been of assistance.
Robert J. Freeman
cc: Town Board, Town of Amsterdam