January 3, 2006
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 information presented in your correspondence.
I have received your letter in which you referred to a situation in which the Board of Education upon which you serve entered into an executive session "to discuss collective negotiations under the Taylor Law." When the executive session began, you wrote that "a grievance hearing was held with members from the teachers association." You have raised the following questions concerning the foregoing:
"Is it appropriate to resolve to go into executive session to discuss collective negotiations under the Taylor Law when holding a teacher association grievance hearing? If not appropriate, how should the motion to go into executive session be worded in the matter of a teacher association grievance."
In this regard, first, it is noted at the outset 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.
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 apply 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.
Of possible relevance to the hearing of grievances by the Board of Education is §108(1) of the Open Meetings Law, which exempts from the coverage of that statute "judicial or quasi-judicial proceedings..." From my perspective, 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. The holding of hearings and providing an opportunity to be heard does not in my opinion render a proceeding quasi-judicial in every instance. Those requirements may be present in a variety of contexts, many of which precede legislative action.
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."
Insofar as the proceedings to which you referred could be characterized as quasi-judicial, the Open Meetings Law, in my view, would not apply.
If a hearing is not quasi-judicial and a majority of the Board gathers to consider a grievance, the gathering, in my view, would constitute a "meeting" that falls within the coverage of the Open Meetings Law. The issue then becomes whether there is a basis for entry into executive session, and the attendant factual circumstances become pertinent in reaching a conclusion. Some grievances must, in my opinion, be discussed in public. In short, none of the grounds for entry into executive session may be applicable. In others, based on the terms of a collective bargaining agreement, some grievances may indeed involve collective negotiations, i.e., to ascertain and, therefore, negotiate with respect to the meaning of terms within the agreement. In that kind of situation, as well as others, a motion for entry into executive session should include sufficient detail to enable Board members and others present at the meeting to recognize that there is a valid basis for conducting the executive session. At a minimum, a motion should indicate that an executive session will be held to discuss collective negotiations involving the teachers’ association, for example (see Doolittle v. Board of Education, Supreme Court, Chemung County, July 21, 1981). Another possible basis for conducting an executive session relates to §105(1)(f), which 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..."
If, for instance, a grievance relates to a particular employee and his or her health or medical condition, I believe that an executive session could properly be held under §105(1)(f). If, on the other hand, a grievance pertains to an issue that does not involve collective bargaining and relates to staff generally, i.e., the bell ending fourth period sounds three minutes too early, I do not believe that there would be any basis for conducting an executive session.
I hope that I have been of assistance.