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 in which you asked that I review a notice given prior to a meeting held jointly by the Town Board and the Planning Board of the Town of Monroe and comment with respect to its propriety. In brief, the notice indicated that a meeting would be held at 7:30 and that "[i]mmediately upon opening, the meeting will adjourn into executive session to discuss contractual negotiations for the acquisition of property" (emphasis added).
You expressed the belief that:
"...the intent was to let the public know that we needed to discuss an
important matter (I believe that it was the acquisition of real property
where the price might be affected) before we met with a second group
of people. We did not want the public to show up at the appointed
time and become angry with us for immediately going into executive
session without any warning. Many times people that come to our meetings are coming home from work in the city and we try to let them know what's going on. There was no intention of trying to cover something up. In fact it was exactly the opposite."
In this regard, by way of background, the phrase "executive session" is defined in §102(3)
of the Open Meetings Law to mean a portion of an open meeting during which the public may be excluded. As such, an executive session is not separate and distinct from a meeting, but rather is a portion of an open meeting. The Law also contains a procedure that must be accomplished during an open meeting before an executive session may be held. Specifically, §105(1) states in relevant part that:
"Upon a majority vote of its total membership, taken in an open meeting pursuant to a motion identifying the general area or areas of the subject or subjects to be considered, a public body may conduct an executive session for the below enumerated purposes only..."
In consideration of the foregoing, it has been consistently advised that a public body, in a
technical sense, cannot schedule or conduct an executive session in advance of a meeting, because a vote to enter into an executive session must be taken at an open meeting during which the executive session is held. In a decision involving the propriety of scheduling executive sessions prior to meetings, it was held that:
"The respondent Board prepared an agenda for each of the five
designated regularly scheduled meetings in advance of the time that
those meetings were to be held. Each agenda listed 'executive
session' as an item of business to be undertaken at the meeting. The
petitioner claims that this procedure violates the Open Meetings Law
because under the provisions of Public Officers Law section 100
provides that a public body cannot schedule an executive session in
advance of the open meeting. Section 100 provides that a public
body may conduct an executive session only for certain enumerated
purposes after a majority vote of the total membership taken at an
open meeting has approved a motion to enter into such a session.
Based upon this, it is apparent that petitioner is technically correct in
asserting that the respondent cannot decide to enter into an executive
session or schedule such a session in advance of a proper vote for the same at an open meeting" [Doolittle, Matter of v. Board of Education, Sup. Cty., Chemung Cty., July 21, 1981; note: the Open Meetings Law has been renumbered and §100 is now §105].
For the reasons expressed in the preceding commentary, a public body cannot in my view
schedule an executive session in advance of a meeting. In short, because a vote to enter into an executive session must be made and carried by a majority vote of the total membership during an open meeting, technically, it cannot be known in advance of that vote that the motion will indeed be approved. However, an alternative method of achieving the desired result that would comply with the letter of the law has been suggested in conjunction with similar situations. Rather than scheduling an executive session, the Board on its agenda or notice of a meeting could refer to or schedule a motion to enter into executive session to discuss certain subjects. Reference to a motion
to conduct an executive session would not represent an assurance that an executive session would ensue, but rather that there is an intent to enter into an executive session by means of a vote to be taken during a meeting. I understand that the intent was to be considerate to the public, and by indicating that an executive session is likely to be held (rather than scheduled), the public would implicitly be informed that there may be no overriding reason for arriving at the beginning of a meeting.
Lastly, based on the information that you provided, it appears that an executive session could properly have been held. Section 105(1)(h) of the Open Meetings Law states that public body may enter into executive to discuss "the proposed acquisition, sale or lease of real property....but only when publicity would substantially affect the value thereof."
I hope that the foregoing serves to clarify your understanding of the Open Meetings Law and that I have been of assistance.
Robert J. Freeman