February 27, 2001
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.
I have received your letter in which you raised a series of questions concerning certain
persons' presence at or exclusion from executive sessions held by the Board of Trustees of the Village of North Syracuse. You also asked whether the Board may appoint a "pro-tem" clerk to attend an executive session to discuss a personnel matter.
In this regard, I offer the following comments.
First, pertinent to several of your questions is §105(2) of the Open Meetings Law, 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, i.e., a village board of trustees, conducting the executive session. Stated differently, I do not believe that a member of a public body may be compelled to leave an 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
If there is a dispute concerning the attendance of a person other than a member of the Village 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.
With respect to issues involving the village clerk, I point out that §4-402 (b) of the Village
Law states in relevant part that the clerk shall "act as clerk of the board of trustees...and shall keep a record of their proceedings." As suggested above, although the Village Board could choose to enable the clerk or others to attend an executive session, only the members of the Board have the right to attend an executive session. However, in my opinion, 4-402 of the Village Law is intended to require the presence of the clerk to take minutes in situations in which motions and resolutions are made and in which votes are taken.
To give effect to both the Open Meetings Law and §4-402 of the Village Law, which imposes certain responsibilities upon a village clerk, it is suggested that there may be three options. First, the Board could permit the clerk to attend an executive session in its entirety. Second, the Board could deliberate during an executive session without the clerk's presence. However, prior to any vote, the clerk could be called into the executive session for the purpose of taking minutes in conjunction with the duties imposed by the Village Law. And third, the Board could deliberate toward a decision during an executive session, but return to an open meeting for the purpose of taking action.
I hope that I have been of assistance.
Robert J. Freeman
cc: Board of Trustees