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OML-AO-3798

May 18, 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 and the news article relating to it. The article states that the chief financial officer for the Roslyn School District was "forced to retire and make restitution after allegedly embezzling $250,000 from the district, [and] may have stolen as much as $1 million..." The article also indicates that District officials chose not to pursue criminal charges, but rather is suing to recover moneys and forced the officer to retire. Residents of the District were informed of the matter in a letter sent to them by the Board of Education and the Superintendent.

Since a board of education cannot take action during an executive session to appropriate public moneys, you contended "the converse would hold true as well", that action to recover public moneys should be taken in public. You questioned, too, whether a board of education is "obligated to make known to the public a loss of public funds at the time of discovery..."

In this regard, I offer the following comments.

First, as you suggested, a public body cannot appropriate public moneys during an executive session. However, there is nothing in the Open Meetings Law or any other statute of which I am aware that would in every instance stand for the proposition that you offered, that an action to recover public moneys must be taken during an open meeting.

For purposes of clarification concerning the ability of a board of education to take action in private, only in rare instances may a board of education take action during an executive session. As a general rule, a public body may take action during a properly convened executive session [see Open Meetings Law, §105(1)]. In the case of most public bodies, if action is taken during an executive session, minutes reflective of the action, the date and the vote must be recorded in minutes pursuant to §106(2) of the Law. If no action is taken, there is no requirement that minutes of the executive session be prepared. Various interpretations of the Education Law, §1708(3), however, indicate that, except in situations in which action during a closed session is permitted or required by statute, a school board cannot take action during an executive session [see United Teachers of Northport v. Northport Union Free School District, 50 AD 2d 897 (1975); Kursch et al. v. Board of Education, Union Free School District #1, Town of North Hempstead, Nassau County, 7 AD 2d 922 (1959); Sanna v. Lindenhurst, 107 Misc. 2d 267, modified 85 AD 2d 157, aff'd 58 NY 2d 626 (1982)]. Stated differently, based upon judicial interpretations of the Education Law, a school board generally cannot vote during an executive session, except in those unusual circumstances in which a statute permits or requires such a vote.

Those situations would arise, for example, when a board initiates charges against a tenured person pursuant to §3020-a of the Education Law, which requires that a vote to do so be taken during an executive session. The other instance would involve a situation in which action in public could identify a student. When information derived from a record that is personally identifiable to a student, the federal Family Educational Rights and Privacy Act (20 USC §1232g) would prohibit disclosure absent consent by a parent of the student. Since §102(2) of the Open Meetings Law states that minutes need not include information that may be withheld under the Freedom of Information Law, and since records identifiable to students may be withheld, minutes containing those kinds of information would not be accessible to the public.

In my view, if action was taken with respect to the officer alleged to have misappropriated funds, i.e., to terminate her or to accept her retirement, I believe that any such action could properly have been taken only during an open meeting.

Second, when the problem was discovered and connected to the chief financial officer, it is likely that an executive session could have been held to discuss the nature of action that might be taken relative to her. Section 105(1)(f) authorizes a public body to enter into executive session to discuss:

"...the medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation..."

Under the circumstances, it appears that some aspects of the Board’s discussion of the situation would have involved a matter leading to the demotion, discipline or dismissal of a particular person.

Lastly, I know of no law that would have required District officials, on their own initiative, to inform the public of the loss of funds when the problem was discovered. Any person, however, may seek school district records at any time under the Freedom of Information Law.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Board of Education