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OML-AO-3913

December 29, 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 information presented in your correspondence.

Dear

I have received your letter in which you requested an advisory opinion concerning the Open Meetings Law in relation to a series of events involving the Sullivan County Legislature and its executive committee.

According to your letter, "on November 18, between 8:30 and 9:20 a.m., members of the news media were alerted by fax and by phone that the Sullivan County Legislature’s executive committee was to convene in emergency session at 9:30 a.m. that day ‘for the purpose of discussing Casino Gaming Issues, and any other issues that may come before the committee.’" You wrote that all nine members of the Legislature attended, as did several members of the news media and the public, "along with representatives of casino interests." Those representing the casinos asked legislators to approve a resolution by noon that day expressing support for their plans and a land claim settlement. They said that there was a need to act quickly to be "on record in time for U.S. Congress to meet and vote on the land claim bill that afternoon."

Following the introduction of the topic by the representatives of the casinos, the Chair of the Legislature indicated that an executive session would likely be necessary, and the County Attorney said that a closed session would involve "potential negotiation." When a motion was made to enter into executive session, the reason given was "negotiations", and you questioned the propriety of that closed session.

In this regard, as you are likely aware, the Open Meetings Law is based upon a presumption of openness. Stated differently, meetings of public bodies must be conducted open to the public, unless there is a basis for entry into an executive session. Further, paragraphs (a) through (h) of §105(1) of the Law specify and limit the subjects that may appropriately be considered in executive session.

The only provision that includes reference to "negotiations" is §105(1)(e), which permits to entry into executive session to discuss or engage in collective bargaining negotiations under the Taylor Law. That law pertains to the relationship between public employers and public employee unions and would not have been relevant to the matter under consideration.

In some instances, I believe that issues relating to negotiations other than collective bargaining negotiations may be considered in executive session. Section 105(1)(f) permits 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."

If, for example, in the course of negotiations involving the engagement of a contractor, a public body considers the financial or credit history of the contractor, to that extent, an executive session could properly be held. Based on the situation in terms of the facts that you presented, whether or the extent to which §105(1)(f) might have been applicable is conjectural. Nevertheless, the reason offered for conducting an executive session, "negotiations", would have been inadequate in my view as a justification or proper reason for entering into executive session.

After the executive session and the preparation of a resolution to be considered by the Legislature, the County Attorney "said there was a need for another closed session, citing the need for an attorney-client discussion." A vote to close the meeting was approved, but when it was "discovered that the two men from the proposed casinos had remained in the closed-door session", a member of the news media "opened the door to express an objection." You wrote, however, that "[t]he door was shoved closed and upon shouts of ‘lock it’, was locked."

Due to the presence of the representatives of the casinos, I do not believe that a closed session could validly been held based on the assertion of the attorney-client privilege. There are two vehicles that may authorize a public body to discuss public business in private. One involves entry into an executive session. Section 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, and the Law requires that a procedure be accomplished, during an open meeting, before a public body may enter into an executive session. The other vehicle for excluding the public from a meeting involves "exemptions." Section 108 of the Open Meetings Law contains three exemptions. When an exemption applies, the Open Meetings Law does not, and the requirements that would operate with respect to executive sessions are not in effect.

With respect to the assertion of the attorney-client privilege, relevant is §108(3), which exempts from the Open Meetings Law:

"...any matter made confidential by federal or state law."

When an attorney-client relationship has been invoked, it is considered confidential under §4503 of the Civil Practice Law and Rules. Therefore, if an attorney and client establish a privileged relationship, the communications made pursuant to that relationship would in my view be confidential under state law and, therefore, exempt from the Open Meetings Law.

In terms of background, it has long been held that a municipal board may establish a privileged relationship with its attorney [People ex rel. Updyke v. Gilon, 9 NYS 243 (1889); Pennock v. Lane, 231 NYS 2d 897, 898 (1962)]. However, such a relationship is in my opinion operable only when a municipal board or official seeks the legal advice of an attorney acting in his or her capacity as an attorney, and where there is no waiver of the privilege by the client.

In a judicial determination that described the parameters of the attorney-client relationship and the conditions precedent to its initiation, it was held that:

"In general, 'the privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (I) an opinion on law or (ii) legal services (iii) assistance in some legal proceedings, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client'" [People v. Belge, 59 AD 2d 307, 399, NYS 2d 539, 540 (1977); emphasis mine].

Insofar as a public body seeks legal advice from its attorney and the attorney renders legal advice, I believe that the attorney-client privilege may validly be asserted and that communications made within the scope of the privilege would be outside the coverage of the Open Meetings Law. However, in this instance, I believe that the presence of the representatives of the casinos, "strangers" who are not clients, essentially resulted in a waiver of the attorney-client privilege, thereby negating the Legislature’s ability to exclude the public from the meeting based on the assertion of the privilege.

Finally, after the meeting was reopened, the Chairman said "that he needed to call an emergency meeting of the full Legislature in order that a formal vote on the resolution be taken." The meeting was convened "within 10 minutes", and although the members of the news media were notified of the meeting by virtue of their presence, you wrote that "the full complement of local media was not present and additional notice was not given to any media not already present, nor was notice posted."

In my opinion, there is no requirement that notice be given to "the full complement of local media"; so long as members of the news media were given notice prior to the meeting, the Legislature’s obligation with respect to that element of the Open Meetings Law was satisfied. However, that statute contains a dual requirement concerning notice of meetings. Specifically, §104 of the Open Meetings Law provides that:

"1. Public notice of the time and place of a meeting scheduled at least one week prior thereto shall be given to the news media and shall be conspicuously posted in one or more designated public locations at least seventy-two hours before each meeting.

2. Public notice of the time and place of every other meeting shall be given, to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a reasonable time prior thereto.

3. The public notice provided for by this section shall not be construed to require publication as a legal notice."

Stated differently, if a meeting is scheduled at least a week in advance, notice of the time and place must be given to the news media and to the public by means of posting in one or more designated public locations, not less than seventy-two hours prior to the meeting. If a meeting is scheduled less than a week an advance, again, notice of the time and place must be given to the news media and posted in the same manner as described above, "to the extent practicable", at a reasonable time prior to the meeting. Although the Open Meetings Law does not make reference to "special" or "emergency" meetings, if, for example, there is a need to convene quickly, the notice requirements can generally be met by telephoning or faxing notice of the time and place of a meeting to the local news media and by posting notice in one or more designated locations. According to your letter, the Legislature failed to post notice, thereby failing to comply with law.

In an effort to enhance compliance with and understanding of the Open Meetings Law, copies of this opinion will be forwarded to County officials.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Sullivan County Legislature
Samuel Yasgur, County Attorney