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OML-AO-4182

April 20, 2006

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 in which you requested an advisory opinion concerning the propriety of an executive session held by the State Board of Elections. You wrote that the executive session involved discussion by the Board "with a representative of US-DOJ and others to discuss a proposed consent order regarding compliance with the federal ‘Help America Vote Act’ HAVA."

A news article that you forwarded indicates that "[t]he state Monday was working feverishly to avert a lawsuit by the U.S. Department of Justice over failure to comply with voting rights laws, spurring the Board of Elections to consider setting up temporary ways for disabled voters to cast ballots."

The article also noted that:

"Over the objections of a reporter, the commission met behind closed doors to discuss its proposed consent deal, arguing private sessions are allowed to discuss litigation and that the Justice Department specifically requested all negotiations be secret."

As I understand the situation, there was no basis for entry into executive session.

By way of background, as a general matter, the Open Meetings Law is based on a presumption of openness. Stated differently, meetings of public bodies must be conducted open to the public, except to the extent that an executive session may properly be held . Further, that statute 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..."

Based on the foregoing, 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.

It would appear that the only pertinent ground for entry in executive session would have been §105(1)(d), which, as suggested by the Board’s Counsel, permits a public body to enter into an executive session to discuss "proposed, pending or current litigation". Based on judicial decisions, the scope of the so-called litigation exception is narrow. As stated judicially:

"The purpose of paragraph d is "to enable is to enable a public body to discuss pending litigation privately, without baring its strategy to its adversary through mandatory public meetings' (Matter of Concerned Citizens to Review Jefferson Val. Mall v. Town bd.. Of Town of Yorketown, 83 AD d. 612, 613, 441 N.S. d. 292). The belief of the town's attorney that a decision adverse to petitioner 'would almost certainly lead to litigation' does not justify the conducting of this public business in an executive session. To accept this argument would be to accept the view that any public body could bar the public from its meetings simply be expressing the fear that litigation may result from actions taken therein. Such a view would be contrary to both the letter and the spirit of the exception" [Weatherwax v. Town of Stony Point, 97 AD d. 840, 841 (1983)].

In view of the foregoing, the exception is intended to permit a public body to discuss its litigation strategy behind closed doors, so as not to divulge its strategy to its adversary, who may be present at a meeting. I emphasize that the Concerned Citizens decision cited in Weatherwax involved a situation in which a town board involved in litigation met with its adversary in an executive session to discuss a settlement. The court determined that there was no basis for entry into executive session; the ability of the board to conduct a closed session ended when the adversary was permitted to attend.

In the context of the situation that you described, even if there would otherwise have been a basis for entry into executive session, once the federal officials were invited to join the Board, the Board, in my view, would have lost its authority to conduct an executive session.

Lastly, in my opinion, the request by the Justice Department that the "negotiations be secret" is irrelevant. Unless the law authorizes the Board to conduct public business in private, a request for secrecy by federal officials has no bearing on the Board’s obligation to comply with the state’s Open Meetings law.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Board of Elections
Todd Valentine