April 8, 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 information presented in your correspondence.
I have received your letter of March 25, which deals in part with a meeting held by the SUNY Rockland Community College Board of Trustees in a room too small for those who sought to attend, even though you informed various officials in advance of the meeting that many more would attend than the meeting room would accommodate.
In this regard, as you are aware, I sent an advisory opinion to you dated March 24 dealing with the issue and transmitted a copy to the Board of Trustees. It is suggested that you might attempt to ensure that copies are reviewed by the Chairman of the Board and as many trustees as possible, as well as the attorney for the College.
You also asked whether the Board of Trustees is required to provide an agenda in advance of its meetings and indicated that: "The BOT begins their meeting by going directly into executive session. This is not done before the public. They then come out, and then open meeting." You expressed the view that the procedure described is inconsistent with law.
With respect to your question concerning an agenda, there no reference in the Open Meetings Law to agendas. Consequently, a public body, such as the Board of Trustees, may choose to prepare or follow an agenda, but there is no obligation to do so. I note that, once an agenda is prepared, it constitutes a "record" subject to rights of access conferred by the Freedom of Information Law.
With regard to the procedure that you described, it is emphasized that a public body cannot conduct an executive session prior to a meeting. Every meeting must be convened as an open meeting, for §102(3) of the Open Meetings Law defines the phrase "executive session" to mean a portion of an open meeting during which the public may be excluded. That being so, it is clear that an executive session is not separate and distinct from an open meeting, but rather that it is a part of an open meeting. Moreover, the Open Meetings Law requires that a procedure be accomplished, during an open meeting, before a public body may enter into an executive session. 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..."
Based on the foregoing, a motion to conduct an executive session must include reference to the subject or subjects to be discussed and it must be carried by majority vote of a public body's membership before such a session may validly be held. The ensuing provisions of §105(1) specify and limit the subjects that may appropriately be considered during an executive session. Therefore, a public body may not conduct an executive session to discuss the subject of its choice.
In an effort to enhance compliance with and understanding of the Open Meetings Law, a copy of this response will be sent to the Board of Trustees.
I hope that I have been of assistance.
Robert J. Freeman
cc: Board of Trustees