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OML-AO-4214

June 9, 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 information presented in your correspondence, except as otherwise indicated.

Dear

Your complaint concerning an executive session held by the City of Oneida communicated by phone to the State Commission of Investigation has been referred to the Committee on Open Government. The Committee, a unit of the Department of State, is authorized to provide advice and opinions pertaining to the Open Meetings Law.

Based on a review of the information provided, including a memorandum concerning your complaint and newspaper articles from the Oneida Daily Dispatch and the Syracuse Post-Standard, the City of Oneida Common Council held a meeting on March 14, 2006 at which an agreement concerning taxes, zoning regulations and code enforcement inspection requirements was negotiated with the Oneida Indian Nation. Please note that we previously issued an advisory opinion pertaining to that meeting (copy enclosed), however, the facts on which our previous opinion was based differ significantly from those you indicate. Accordingly, we offer the following comments with regard to the issues which you have raised.

First, the Open Meetings Law requires that a procedure be accomplished, during an open meeting, before a public body may enter into an executive session. Section 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 total 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.

Second, it has been held judicially that :

"...the public body must identify the subject matter to be discussed (See, Public Officers Law § 105 [1]), and it is apparent that this must be accomplished with some degree of particularity, i.e., merely reciting the statutory language is insufficient (see, Daily Gazette Co. v Town Bd., Town of Cobleskill, 111 Misc 2d 303, 304-305). Additionally, the topics discussed during the executive session must remain within the exceptions enumerated in the statute (see generally, Matter of Plattsburgh Publ. Co., Div. of Ottaway Newspapers v City of Plattsburgh, 185 AD2d §18), and these exceptions, in turn, 'must be narrowly scrutinized, lest the article's clear mandate be thwarted by thinly veiled references to the areas delineated thereunder' (Weatherwax v Town of Stony Point, 97 AD2d 840, 841, quoting Daily Gazette Co. v Town Bd., Town of Cobleskill, supra, at 304; see, Matter of Orange County Publs., Div. of Ottaway Newspapers v County of Orange, 120 AD2d 596, lv dismissed 68 NY 2d 807)"

We stress that a public body may validly conduct an executive session only to discuss one or more of the subjects listed in §105(1) and that a motion to conduct an executive session must be sufficiently detailed to enable the public to believe that there is a proper basis for entry into the closed session.

Minutes of the meeting forwarded to the Committee in conjunction with the enclosed advisory opinion, indicate that the only persons present at the March 14, 2006 meeting were Councilmembers. One newspaper report states, however, that representatives from the Oneida Indian Nation were also present at the meeting. If representatives from the Nation were permitted to attend the executive session, the provision which permits a public body to enter into an executive session to discuss "proposed, pending or current litigation" (§105[1][d]) would not have applied for reasons outlined below.

While the courts have not sought to define the distinction between "proposed" and "pending" or "pending" and "current" litigation, they have provided direction concerning the scope of the exception in a manner consistent with the general intent of the grounds for entry into executive session. Specifically, it has been held that:

"The purpose of paragraph d 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 Yorktown, 83 AD 2d 612, 613, 441 NYS 2d 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 2d 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 with other members of the public at the meeting. We note too, 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 matter at issue, if a representative of the Nation was invited to attend the executive session, the Council, in our view, would have lost its authority to conduct a private session.

We note that if litigation is pending in federal court between the Oneida Common Council and the Oneida Indian Nation, there may be a court order which requires confidentiality of settlement negotiations. In that regard, we point out that there are two vehicles that potentially enable a public body to exclude the public from a meeting. One involves the ability to enter into an executive session. The other 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(3), which exempts from the Open Meetings Law:

"...any matter made confidential by federal or state law."

From our perspective, if there was a court order in effect on the date of the meeting, requiring negotiations or settlement discussions to be kept confidential, a meeting for the purpose of conducting settlement negotiations between the Council and the Nation would be outside the coverage of the Open Meetings Law. If that is so, again, the procedure for entry into executive session would not apply. Similarly, the requirements regarding notice, the taking of minutes and other aspects of the Open Meetings Law would be inapplicable.

On behalf of the Committee on Open Government we hope this is helpful to you.

Sincerely,

 

Camille S. Jobin-Davis
Assistant Director

CSJ:jm

Enc.

cc: City Council
Peter Hedglon