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OML-AO-3994

June 21, 2005

E-MAIL

TO:

FROM: Robert J. Freeman, Executive Director

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.

Dear

I have received your letter and apologize for the delay in response.

You indicated that you are a member of the Cherry Valley-Springfield Central School District Board of Education, and that you wrote to this office "as an individual member, and not as a representative of the Board of the District." You wrote that:

"Our current contract with the Cherry Valley-Springfield Teacher’s Association contains a procedure for handling grievances. Part of that procedure calls for a Board of Education hearing, should the Association wish to appeal a decision by the Superintendent. The contract explicitly states that these hearings shall be conducted by the Board of Education in an executive session."

It is your view, however, that:

"...the contract binds the Board in an illegal way. As Members of the Board, we should be free to decide, on a case by case basis, if a matter ought to be considered in executive session. If, in the opinion of a majority of the Board, a matter ought not be heard in executive session, we should be free to make that choice. In other words, it seems to me that the particular contract provision obligating the Board to enter into executive session is contrary to law."

In this regard, I offer the following comments.

First, a contract cannot validly diminish rights conferred by law, and the Open Meetings Law, which is Article 7 of the Public Officers Law, states in §110(1) that:

"Any provision of a charter, administrative code, local law, ordinance, or rule or regulation affecting a public body which is more restrictive with respect to public access than this article shall be deemed superseded hereby to the extent that such provision is more restrictive than this article."

Therefore, in the context of the situation that you described, insofar as the contract may require that an executive session must be held, even if the Open Meetings Law or some other provision requires that the proceeding be open, I believe that any such provision is invalid and of no effect.

Second, I point out that 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. 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. Therefore, a public body may not conduct an executive session to discuss the subject of its choice. Further, as you inferred, a public body has the option of entering into an executive session when there is an appropriate basis to do so; even when such a proper basis exists, there is no obligation to conduct an executive session.

From my perspective, the subject matter of a grievance is the key factor in considering whether an executive session may properly be held. If, for example, the grievance involves the bells going off too late or early or that there are not enough parking spaces, I do not believe that there would be any basis for entry into executive session. On the other hand, if a grievance relates to a teacher’s health or medical condition, it is likely that an executive session could be justified [see §105(1)(f)].

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. Stated differently, to discuss a matter exempted from the Open Meetings Law, a public body need not follow the procedure imposed by §105(1) that relates to entry into an executive session. Further, although executive sessions may be held only for particular purposes, there is no such limitation that relates to matters that are exempt from the coverage of the Open Meetings Law.

Of possible relevance to the matter is §108(1) of the Open Meetings Law, which exempts from the coverage of that statute "judicial or quasi-judicial proceedings..." It is often difficult to determine exactly when public bodies are involved in a quasi-judicial proceeding, or where a line of demarcation may be drawn between what may be characterized as quasi-judicial, quasi-legislative or administrative functions.

I believe that one of the elements of a quasi-judicial proceeding is the authority to take final action. While I am unaware of any judicial decision that specifically so states, there are various decisions that infer that a quasi-judicial proceeding must result in a final determination reviewable only by a court. For instance, in a decision rendered under the Open Meetings Law, it was found that:

"The test may be stated to be that action is judicial or quasi-judicial, when and only when, the body or officer is authorized and required to take evidence and all the parties interested are entitled to notice and a hearing, and, thus, the act of an administrative or ministerial officer becomes judicial and subject to review by certiorari only when there is an opportunity to be heard, evidence presented, and a decision had thereon" [Johnson Newspaper Corporation v. Howland, Sup. Ct., Jefferson Cty., July 27, 1982; see also City of Albany v. McMorran, 34 Misc. 2d 316 (1962)].

Another decision that described a particular body indicated that "[T]he Board is a quasi-judicial agency with authority to make decisions reviewable only in the Courts" [New York State Labor Relations Board v. Holland Laundry, 42 NYS 2d 183, 188 (1943)]. Further, in a discussion of quasi-judicial bodies and decisions pertaining to them, it was found that "[A]lthough these cases deal with differing statutes and rules and varying fact patterns they clearly recognize the need for finality in determinations of quasi-judicial bodies..." [200 West 79th St. Co. v. Galvin, 335 NYS 2d 715, 718 (1970)].

It is my opinion that the final determination of a controversy is a condition precedent that must be present before one can reach a finding that a proceeding is quasi-judicial. Reliance upon this notion is based in part upon the definition of "quasi-judicial" appearing in Black's Law Dictionary (revised fourth edition). Black's defines "quasi-judicial" as:

"A term applied to the action, discretion, etc., of public administrative officials, who are required to investigate facts, or ascertain the existence of facts, and draw conclusions from them, as a basis for their official action, and to exercise discretion of a judicial nature."

In the situation that you described, it is unclear whether the Board, following a hearing, renders a determination that is final and binding. If it does so, I believe that its deliberations would be quasi-judicial and, therefore, exempt from the requirements of the Open Meetings Law. It is noted, however, that even when the deliberations of a board of education may be outside the coverage of the Open Meetings Law, its vote and other matters would not be exempt. As stated in Orange County Publications v. City of Newburgh:

"there is a distinction between that portion of a meeting...wherein the members collectively weigh evidence taken during a public hearing, apply the law and reach a conclusion and that part of its proceedings in which its decision is announced, the vote of its members taken and all of its other regular business is conducted. The latter is clearly non-judicial and must be open to the public, while the former is indeed judicial in nature, as it affects the rights and liabilities of individuals" [60 AD 2d 409,418 (1978)].

Therefore, even if the Board may deliberate in private, based upon the decision cited above, the act of voting or taking action must in my view occur during a meeting.

Moreover, both the Freedom of Information Law and the Open Meetings Law impose record-keeping requirements upon public bodies, such as boards of education. With respect to minutes of open meetings, §106(1) of the Open Meetings Law states that:

"Minutes shall be taken at all open meetings of a public body which shall consist of a record or summary of all motions, proposals, resolutions and any other matter formally voted upon and the vote thereon."

The minutes are not required to indicate how the Board reached its conclusion; however, I believe that the conclusion itself, i.e., a motion or resolution, must be included in minutes. I note, too, that
since its enactment, the Freedom of Information Law has contained a related requirement in §87(3). The provision states in part that:

"Each agency shall maintain:

(a) a record of the final vote of each member in every agency proceeding in which the member votes..."

In short, because a board of education is a "public body" and an "agency", I believe that it is required to prepare minutes in accordance with §106 of the Open Meetings Law, including a record of the votes of each member in conjunction with §87(3)(a) of the Freedom of Information Law.

Lastly, even if a hearing is exempt from the coverage of the Open Meetings Law, based on a decision rendered by the Court of Appeals, the state’s highest court, it is questionable whether a hearing may be closed. In Herald Company, Inc. v. Weisenberg [59 NY2d 378 (1983)], it was held that administrative and quasi-judicial proceedings are presumptively open to the press and the public, and that those proceedings may be closed only upon a showing of "compelling circumstances." Whether the holding in Herald Company would be applicable to the hearings that you described has not, to my knowledge, been determined.

I hope that I have been of assistance.

RJF:tt