September 11, 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.
We are in receipt of your request for an advisory opinion concerning application of the Open Meetings Law to a meeting of the Oyster Bay-East Norwich Central School District on June 6, 2006. In your request you present various items of information which may not pertain to that meeting, all of which we will attempt to address. First, you described the Vice President’s characterization of the meeting as "an Audit Committee Meeting and all Board members comprise this committee" and inquired as to the appropriateness of an executive session held, as the Superintendent indicated, "to discuss new accounting procedures". And finally, the agenda that you submitted reflects a meeting of the Board with reference to an executive session for "Audit Committee". In this regard, we offer the following comments.
First, the Open Meetings Law pertains to meetings of public bodies, and a "meeting" is a convening of a quorum of a public body for the purpose of conducting public business [see §102(1)]. Absent a quorum, the Open Meetings Law does not apply [see e.g., Mobil Oil Corp. v. City of Syracuse Industrial Development Agency, 224 AD2d 15, motion for leave to appeal denied, 89 NY2d 811 (1997)]. In the context of the June 6th gathering that you described, once a quorum of the Board had convened, which would presumably involve a gathering of four of the seven school board members, the gathering in our view constituted a meeting of the Board, and the Open Meetings Law would have applied.
Second, as recently defined in §2116-c of the Education Law (L. 2005, Chap. 263), audit committees, in our opinion, are public bodies and may enter into executive session only for enumerated purposes set forth in Open Meetings Law §105(1)(a) through (h) and Education Law, §2116-c(5)(b), (c) and (d). In addition to the presumption that the Open Meetings Law applies as set forth in the statute, when a committee consists solely of members of a public body, such as the school board, we believe that the Open Meetings Law is also applicable, for a committee composed of three school board members itself constitutes a "public body."
By way of background, when the Open Meetings Law went into effect in 1977, questions consistently arose with respect to the status of committees, subcommittees and similar bodies that had no capacity to take final action, but rather merely the authority to advise. Those questions arose due to the definition of "public body" as it appeared in the Open Meetings Law as it was originally enacted. Perhaps the leading case on the subject also involved a situation in which a governing body, a school board, designated committees consisting of less than a majority of the total membership of the board. In Daily Gazette Co., Inc. v. North Colonie Board of Education [67 AD 2d 803 (1978)], it was held that those advisory committees, which had no capacity to take final action, fell outside the scope of the definition of "public body".
Nevertheless, prior to its passage, the bill that became the Open Meetings Law was debated on the floor of the Assembly. During that debate, questions were raised regarding the status of "committees, subcommittees and other subgroups." In response to those questions, the sponsor stated that it was his intent that such entities be included within the scope of the definition of "public body" (see Transcript of Assembly proceedings, May 20, 1976, pp. 6268-6270).
Due to the determination rendered in Daily Gazette, supra, which was in apparent conflict with the stated intent of the sponsor of the legislation, a series of amendments to the Open Meetings Law were enacted in 1979 and became effective on October 1 of that year. Among the changes was a redefinition of the term "public body". "Public body" is now defined in §102(2) to include:
"...any entity for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof, or for a public corporation as defined in section sixty-six of the general construction law, or committee or subcommittee or other similar body of such public body."
Although the original definition made reference to entities that "transact" public business, the current definition makes reference to entities that "conduct" public business. Moreover, the definition makes specific reference to "committees, subcommittees and similar bodies" of a public body.
In view of the amendments to the definition of "public body", we believe that any entity consisting of two or more members of a public body, such as a committee or subcommittee consisting of members of a school board, would fall within the requirements of the Open Meetings Law, assuming that a committee discusses or conducts public business collectively as a body [see Syracuse United Neighbors v. City of Syracuse, 80 AD 2d 984 (1981)]. Here, the Audit Committee is made up entirely of Board members.
Further, we believe that the Legislature intended the Open Meetings Law to apply against audit committees based on the language contained in Education Law §2116-c(7), which provides as follows:
"7. Notwithstanding any provision of article seven of the public officers law or any other law to the contrary, a school district audit committee may conduct an executive session pursuant to section one hundred five of the public officers law pertaining to any matter set forth in paragraphs b, c, and d of subdivision five of this section."
In our opinion, this language presumes the applicability of Article 7 of the Public Officers Law, known as the Open Meetings Law, and creates additional grounds for entry into executive session for use by audit committees only.
With respect to your questions concerning executive session, as you may be aware, 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.
The additional grounds for entry into executive session as created by Education Law §2116-c are as follows:
"5. ... to (b) meet with the external auditor prior to commencement of the audit;
(c) review and discuss with the external auditor any risk assessment of the district’s fiscal operations developed as part of the auditor’s responsibilities under governmental auditing standards for a financial statement audit and federal single audit standards if applicable;
(d) receive and review the draft annual audit report and accompanying draft management letter and, working directly with the external auditor, assist trustees or board of education in interpreting such documents;...."
It has been held judicially that :
"...the public body must identify the subject matter to be discussed (See, Public Officers Law § 105 ), 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)"
In sum, it is reiterated that the Audit Committee may validly conduct an executive session only to discuss one or more of the subjects listed in Open Meetings Law §105(1) or Education Law §2116-c(5)(b), (c) or (d), and that a motion to conduct an executive session must be sufficiently detailed to enable the public to know that there is a proper basis for entry into the closed session. A discussion of new or proposed accounting procedures, in our opinion, is not one of the permitted topics of discussion for executive session. Very simply, the subject matter of a discussion of that nature would not fall within any of the grounds under which an audit committee may enter into an executive session.
You further inquired as to the availability of minutes from the executive session. The Open Meetings Law contains direction concerning minutes of meetings and provides what might be viewed as minimum requirements pertaining to their contents. Specifically, §106 states that:
"1. 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.
2. Minutes shall be taken at executive sessions of any action that is taken by formal vote which shall consist of a record or summary of the final determination of such action, and the date and vote thereon; provided, however, that such summary need not include any matter which is not required to be made public by the freedom of information law as added by article six of this chapter.
3. Minutes of meetings of all public bodies shall be available to the public in accordance with the provisions of the freedom of information law within two weeks from the date of such meetings except that minutes taken pursuant to subdivision two hereof shall be available to the public within one week from the date of the executive session."
In view of the foregoing, as a general rule, a public body may take action during a properly convened executive session [see Open Meetings Law, §105(1)]. Only in rare instances may a board of education take action during an executive session. In the case of most public bodies, if action is taken during an executive session, minutes reflective of the action, the date and the vote must be recorded in minutes pursuant to §106(2) of the Law. If no action is taken, there is no requirement that minutes of the executive session be prepared. Various interpretations of the Education Law, §1708(3), however, indicate that, except in situations in which action during a closed session is permitted or required by statute, a school board cannot take action during an executive session [see United Teachers of Northport v. Northport Union Free School District, 50 AD 2d 897 (1975); Kursch et al. v. Board of Education, Union Free School District #1, Town of North Hempstead, Nassau County, 7 AD 2d 922 (1959); Sanna v. Lindenhurst, 107 Misc. 2d 267, modified 85 AD 2d 157, aff'd 58 NY 2d 626 (1982)]. Stated differently, based upon judicial interpretations of the Education Law, a school board generally cannot vote during an executive session, except in those unusual circumstances in which a statute permits or requires such a vote.
Those circumstances would arise, for example, when a board initiates charges against a tenured person pursuant to §3020-a of the Education Law, which requires that a vote to do so be taken during an executive session. The other instance would involve a situation in which action in public could identify a student. When information derived from a record that is personally identifiable to a student, the federal Family Educational Rights and Privacy Act (20 USC §1232g) would prohibit disclosure absent consent by a parent of the student.
Further, we note that the Board’s by-laws indicate that "Matters discussed in executive sessions must be treated as confidential; that is, never discussed outside of that executive session." Because a meeting of the Audit Committee is a meeting of a public body, and because, if we have understood the facts correctly, there was no basis for entering into executive session, it is our opinion that this by-law would not have applied.
Finally, please note that while the Committee on Open Government is authorized to issue advisory opinions concerning application of the Open Meetings Law, this office has no authority to enforce the law or compel an entity to comply with the statutory provisions. The enforcement mechanism within the Open Meetings Law, §107(1), states in part that:
"Any aggrieved person shall have standing to enforce the provisions of this article against a public body by the commencement of a proceeding pursuant to article seventy-eight of the civil practice law and rules, and/or an action for declaratory judgment and injunctive relief. In any such action or proceeding, the court shall have the power, in its discretion, upon good cause shown, to declare any action or part thereof taken in violation of this article void in whole or in part."
On behalf of the Committee on Open Government we hope this is helpful to you. At your request, a copy of this opinion will be sent to the Superintendent.
Camille S. Jobin-Davis
cc: Phyllis Harrington, Superintendent