March 10, 2003
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, as well as a news article and an editorial, concerning a certain
issue considered by the Shelter Island Planning Board. You have questioned the propriety of executive sessions held during recent meetings at which that issue was discussed.
Specifically, in its review of a subdivision application, executive sessions have been held on the ground that the Town, in your words, is "negotiating for the acquisition of real estate - in this case an easement or 'development right' to a particular well-known parcel in town rather than the land itself." You added that "[a]ll parties that might be affected by this proposed purchase are well aware of the property involved and of these negotiations; the owners's representative, in fact, is in attendance at these closed sessions."
In this regard, as you are aware, the Open Meetings Law is based on a presumption of
openness. Stated differently, meetings of public bodies must be conducted open to the public, except to the extent that an executive session may properly be conducted in accordance with paragraphs (a) through (h) of §105(1). Consequently, a public body, such as a planning board, cannot enter into an executive session to discuss the subject of its choice. From my perspective, the grounds for entry into executive session are based on the need to avoid some sort of harm that would arise by means of public discussion, and that is so with respect to the ground for entry into executive session that is relevant in relation to the matter that you described.
The only provision of apparent significance, §105(1)(h) of the Open Meetings Law, permits a public body to enter into executive session to discuss:
"the proposed acquisition, sale or lease of real property or the proposed acquisition of securities, or sale or exchange of securities held by such public body, but only when publicity would substantially affect the value thereof."
In my opinion, the language quoted above, like the other grounds for entry into executive session, is based on the principle that public business must be discussed in public unless public discussion would in some way be damaging, either to an individual, for example, or to a government in terms of its capacity to perform its functions appropriately and in the best interest of the public. It is clear that §105(1)(h) does not permit public bodies to conduct executive sessions to discuss all matters that may relate to the transaction of real property; only to the extent that publicity would "substantially affect the value of the property" can that provision validly be asserted.
A key question, in my view, involves the extent to which information relating to possible real
property transactions is or has become known to the public. The more that is known, the less likely
it is that publicity would have an impact on the value of a parcel or would in some way damage the
interests of Town taxpayers. I note that the language of §105(1)(h) does not refer to negotiations per
se or the impact of publicity upon negotiations relating to a parcel; rather its proper assertion is
limited to situations in which publicity would have a substantial effect on the value of the property.
It has been advised, for example, that when a municipality is seeking to purchase a parcel and the
public is unaware of the location or locations under consideration, it is possible if not likely that
premature disclosure or publicity would indeed substantially affect the value of the property. In that
kind of situation, publicity might result in speculation or offers from others, thereby precluding the
municipality from reaching an optimal price on behalf of the taxpayers. However, when details concerning a potential real property transaction, such as the location and potential uses of the property, are known to the public, publicity would have a lesser effect or impact on the value of the parcel. Again, the more that is known to the public, the less likely it is that publicity would affect the value of a parcel.
In short, the language of §105(1)(h) is limited and precise, for it focuses solely on the impact of publicity on the value of a parcel. Based on the terms of that provision, only in those instances in which "publicity would substantially affect the value" of a parcel of real property may an executive session properly be held.
In this instance, there is nothing secret about the issue; the residents of the community are
well aware of the matter, for it is the subject of review by the Planning Board. Moreover, all of the parties affected have been involved in the negotiations. In consideration of the facts as you presented them, I do not believe that a claim could justifiably be made or proven that publicity could have an effect, let alone a "substantial" effect, on the value of the property that is the subject of the discussion. If that is so, I do not believe that §105(1)(h), or any other ground for entry for executive session, could be asserted as a means of closing a meeting of the Board.
I hope that I have been of assistance.
Robert J. Freeman
cc: Planning Board