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OML-AO-4027

August 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 facts presented in your correspondence.

Dear

I have received your letter and the materials attached to it. Please accept my apologies for the delay in response.

In your capacity as a member of the Elmira City School District Board of Education, you wrote that, due to unusual circumstances, the Superintendent may be both a plaintiff and a defendant in a lawsuit involving the District. That being so, you raised questions concerning "the qualifications or eligibility requirements for membership" in a public body and the authority of a superintendent of schools to attend executive sessions of the Board.

In this regard, §105(2) of the Open Meetings Law states that: "Attendance at an executive session shall be permitted to any member of the public body and any other persons authorized by the public body." Based on that provision, I believe that only the members of a public body, such as a board of education, have the right to attend an executive session. While a public body may permit others to attend, those who are not members have no right to attend.

The issue concerning the superintendent’s right to attend emanates from §2508(1) of the Education Law, which states that:

"The superintendent of schools of a city school district shall possess, subject to the bylaws of the board of education, the following powers and be charged with the following duties:

1. To be the chief executive officer of the school district and the educational system, and to have a seat on the board of education and the right to speak on all matters before the board, but not to vote."

In consideration of the foregoing, if a superintendent is a member of a board of education, he or she would have the right to attend executive sessions; conversely, if he or she is not considered a member of the board, I do not believe that the superintendent would have the right to do so.

While I am not an expert concerning the Education Law, it appears that §2502(2) indicates who "qualifies" and in fact is a "member" of a city school district board of education. That provision states in relevant part that:

"Each board of education shall consist of five, seven or nine members, to be known as members of the board of education...Members of such board shall be elected by the qualified voters at large of the school district at annual school district elections..."

As I interpret the language quoted above, the members of a board of education are those persons elected to the board. A superintendent is not elected; rather, he or she is appointed by the board, the governing body of the school district, to serve in his or her position. A superintendent carries out his or her duties pursuant to law, as well as a contract delineating his or her compensation and benefits. Board members do not carry out their duties pursuant to any similar contractual agreement; the voters elect them to serve for specific terms.

In consideration of the foregoing, I do not believe that a superintendent is a member of a board of education, a public body. In my opinion, therefore, a superintendent does not have the right to attend an executive session of the board. Again, a board of education may choose to authorize the attendance of a superintendent at its executive sessions, but in my view, it is not required to do so.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

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