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OML-AO-3754

January 30, 2004

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, unless otherwise indicated.

Dear

I have received your letter in which you asked whether the County Legislature may enter into an executive session to discuss a lawsuit involving the Human Services Building.

Based on a conversation with Legislator Brothers, the Human Services Building is owned by a not-for-profit corporation (hereafter "the corporation") and is leased by St. Lawrence County. The Village of Canton has collected or is attempting to collect real property tax from the corporation, which has sued the Village and the Town concerning that issue. She indicated that the County is not a party to the lawsuit. Nevertheless, Legislator Brothers indicated that it has been contended that the County Legislature may enter into executive session in relation to the matter to discuss "litigation."

If I understand the facts accurately, the exception cited as justification for conducting an executive would not be applicable. In this regard, I offer the following comments.

First, as you are aware, 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..."

As such, a motion to conduct an executive session must include reference to the subject or subjects to be discussed, and the motion 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.

Second, in construing the exception concerning litigation, it has been held that:

"The purpose of paragraph d is "to enable is to enable a public body to discuss pending litigation privately, without baring its strategy to its adversary through mandatory public meetings' (Matter of Concerned Citizens to Review Jefferson Val. Mall v. Town Bd. Of Town of Yorktown, 83 AD 2d 612, 613, 441 NYS 2d 292). The belief of the town's attorney that a decision adverse to petitioner 'would almost certainly lead to litigation' does not justify the conducting of this public business in an executive session. To accept this argument would be to accept the view that any public body could bar the public from its meetings simply be expressing the fear that litigation may result from actions taken therein. Such a view would be contrary to both the letter and the spirit of the exception" [Weatherwax v. Town of Stony Point, 97 AD 2d 840, 841 (1983)].

Based upon the foregoing, I believe that the exception is intended to permit a public body to discuss its litigation strategy behind closed doors. In my view, a key word in the decision and in the context of your inquiry is "its." If the county is not and does not expect to be a party to the litigation, there would be no consideration of "its" litigation strategy; the County would have no adversary in any legal proceeding. If that is so, based on the direction offered by the courts, I do not believe that the exception regarding litigation would serve as valid basis for conducting an executive session.

If my understanding of the facts is inaccurate, please so inform me.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: William F. Maginn, County Attorney