February 25, 2005
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 in which you asked whether a grievance filed against a town or village "for violating a provision in the Collective Bargaining Agreement" must be discussed during an executive session pursuant to §105(1)(e) of the Open Meetings Law, or whether a grievance is "considered litigation."
In this regard, I offer the following comments.
First, the Open Meetings Law is permissive, and a public body, such as a town board or village board of trustees, is not required to conduct executive sessions, even when it has the authority to do so. As stated in the introductory language of §105(1) of the Open Meetings Law:
"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..."
Second, as you know, §105(1)(e) permits a public body to discuss "collective negotiations" under the Taylor Law in executive session. In my view, a grievance does not involve collective negotiations, but rather whether the terms of an existing agreement are being carried out in accordance with the agreement. Therefore, I do not believe that consideration of a grievance could properly occur in executive session based on §105(1)(e).
Section 105(1)(d) permits an executive session to discuss "proposed, pending or current litigation." In my view, the term "litigation" involves a judicial contest, and I do not believe that the discussion of a grievance involves a judicial contest. As such, §105(1)(d) would not in my view be applicable as a basis for entry into executive session.
From my perspective, when a board is discussing a grievance, it is likely that the only ground for entry into executive session that might be pertinent would be §105(1)(f). That provision 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 or corporation..."
If a grievance pertains to a particular person in relation to a subject described in that provision, an executive session would appear to be appropriate. For instance, if an employee has complained that the air quality in his office is making him ill, the matter may involve his medical history. If, however, the grievance involves the policy concerning duties applicable to all employees, I do not believe that there would be any basis for conducting an executive session under §105(1)(f).
I hope that I have been of assistance.
Robert J. Freeman