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 letters from both of you involving the same issue, the propriety of an
executive session held by the Sullivan County Legislative Executive Committee to discuss "contract negotiations" relating to a potential development. The Executive Committee consists of all nine members of the County Legislature.
From my perspective, the issue and, therefore, the problem involves the extent to which a
motion for entry into executive session adequately describes the matter to be considered. Absent sufficient detail, the public has no way of ascertaining whether or the extent to which an executive session may properly be held.
As you are aware, §105(1) requires that a motion for entry into executive session include
reference to the subject or subjects to be considered. Paragraphs (a) through (h) of §105(1) specify and limit the grounds for entry into executive session. The only reference in §105(1) to "negotiations" or "contract negotiations" appears in paragraph (e). The provision pertains only to collective bargaining negotiations involving a public employee union and would clearly be inapplicable in the context of the instant situation.
The provision that might have justified an executive session in the circumstance described
does not refer directly to negotiations. Paragraph (f) of §105(1) states that a public body may enter into executive session to discuss:
"the medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation..."
Frequently negotiations or a discussion of negotiations include consideration of the financial, credit or employment history" of a "particular person or corporation." To the extent that is so, I believe that an executive session may properly be held. Nevertheless, unless the basis for entry into executive session is expressed in that manner (i.e., "I move to enter into executive session to discuss the financial or credit history of a particular corporation"), the public cannot know whether there is indeed a proper basis for conducting an executive session. A description of the matter as "contract negotiations" would not, for reasons discussed earlier, describe the matter in a way that offers justification for holding an executive session.
In short, a more precise or artful motion for entry into executive session would, in my view,
likely resolve some of the difficulties encountered.
I hope that I have been of assistance.
Robert J. Freeman