August 21, 2003
I have received your letter in which you suggested that an advisory opinion that I prepared
on July 14 at the request of Ms. Joan M. Charles "may have been based on incomplete information",
and that additional information that you have offered might "enable [me] to render a supplemental
Based on the information given to me by Ms. Charles, it did not appear that the Mendon
Town Board could properly have held an executive session to consider the location for construction of a new library, for it did not appear that the pertinent basis for entry into executive session, §105(1)(h) of the Open Meetings Law, could justifiably have been asserted. You indicated, however, that the "Town Board was of the opinion that publicity regarding the possible acquisition could substantially affect the value thereof", that the Board "discussed several other potential non-Town-owned sites during the executive session", as well as "potential disposal of the current library building and site", and that there "were a total of six sites under review by the Board."
I have carefully reviewed the materials sent to me by Ms. Charles, and despite the
information you have provided, if I understand their contents accurately, it remains questionable whether an executive session could properly have been held.
In this regard, first, it appears that the Town Supervisor may not have been fully familiar with
§105(1)(h). According to a news article dated June 28, "potential land acquisition matters must be
discussed in executive session, she said." That statement, in my view, is inaccurate. The Open
Meetings Law nowhere requires that an executive session must be held. On the contrary, the
introductory language of §105(1) states that an executive session may be held to discuss certain
matters specified in the provisions that follow. Further, that a discussion involves a land acquisition
matter is not itself sufficient to justify the holding of an executive session. As you are aware and as
indicated in the opinion sent to Ms. Charles, §105(1)(h) authorizes a public body to discuss the "proposed acquisition, sale or lease of real property....but only when publicity would substantially
affect the value thereof."
The materials sent to me by Ms. Charles included cost breakdowns, apparently prepared by the Supervisor and sent to the Library Board of Trustees on May 13, pertaining to five possible sites, and I assumed that the sixth possible site involved the parcel owned by the Town. If they represent the six sites and were made known prior to the meeting during which the executive session in at issue was held, again, I question how or the extent to which publicity would have "substantially" affected the value of those parcels.
If I have misconstrued the facts or if you or Town officials can provide additional information or clarification indicating how or why publicity would, under the circumstances, have "substantially affected the value" of a parcel, I would be pleased prepare a new opinion.
Robert J. Freeman