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OML-AO-4336


                                                                                                February 21, 2007


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.

Dear


           I have received your letter and the materials attached to it. You have requested an advisory opinion concerning the Town of Southold Board of Ethics and “whether entering into executive session to discuss a potential ethics code violation by a town employee is proper, or is, as noted in the newspaper article and by former Town Justice Tedeschi, a ‘stretch’ of the Open Meetings Law.”

            The article to which you referred is an editorial published by the Suffolk Times. Mr. Todeschi, a longstanding member of the Board of Ethics and former Town Justice, according to the editorial, “said the subject of the investigation was not one of the eight subjects appropriate for executive session.” The editorial also included a passage from an opinion that I prepared in 2003 relating to similar issues in which it was advised that:

“‘It is clear that public officers or employees enjoy a lesser degree of privacy than others, for it has been found in various contexts that those persons are required to be more accountable than others’....‛The courts have found that, as a general rule, records that are relevant to the performance of a public official’s duties are available, for disclosure in such instances would result in permissible rather than unwarranted invasion of personal privacy.’”

            With due respect to the former Town Justice, I believe that he is mistaken, for, in my view, there would clearly be a basis for entry into executive session. And with respect to the Times editorial, it is noted that there are many instances in which the grounds for entry into executive session are not equivalent to or consistent with the grounds for withholding records under the Freedom of Information Law. It appears that the editorial erroneously applied standards employed in ascertaining rights of access to records under the Freedom of Information Law, rather than the standards appearing in the Open Meetings Law concerning the ability to enter into executive session.

            For reasons expressed in the opinion prepared in 2003, it was advised based on judicial precedent that “final determinations indicating the imposition of some sort of disciplinary action pertaining to particular public officials [have been] found to be available.” However, in the same paragraph in which that advice was offered, the following was also expressed: 

“...when allegations or charges of misconduct have not yet been determined or did not result in disciplinary action, the records relating to such allegations may, in my view, be withheld, for disclosure would result in an unwarranted invasion of personal privacy [see e.g., Herald Company v. School District of City of Syracuse, 430 NYS2d (1980)]. Further to the extent the charges are dismissed or allegations are found to be without merit, I believe that they may be withheld.”

            Preceding any determination would be consideration and discussion by a Board of Ethics of a complaint or allegation of misconduct. When the complaint or allegation focuses on a particular public officer or employee, I believe that the Board of Ethics clearly has the right to enter into an executive session.

            Again, referring to the opinion rendered in 2003, it was written that: 

“Relevant to the duties of a board of ethics is §105(1)(f) of the Law, which permits a public body to enter into an 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 the issue before a board of ethics involves a particular person in conjunction with one or more of the subjects listed in §105(1)(f), I believe that an executive session could appropriately be held. For instance, if the issue deals with the ‘financial history’ of a particular person or perhaps matters leading to the discipline of a particular person, §105(1)(f) could in my opinion be cited for the purpose of entering into an executive session.”

            Lastly, the 2003 opinion indicates that both the Open Meetings Law and the Freedom of Information Law are permissive. Stated differently, the Open Meetings Law permits public bodies to conduct executive sessions in certain circumstances but does not require that they do so. Similarly, the Freedom of Information Law permits an agency to withhold records in accordance with the exceptions authorizing denials of access, but the agency is not required to do so. Nevertheless, the ability to discuss an issue in public or to disclose records does not create an obligation to do so when there is a justifiable basis for conducting an executive session or withholding records. In the context of the matter at issue, again, I believe that the Board of Ethics had the right to enter into executive session.

            I hope that the foregoing serves to clarify and that I have been of assistance.


                                                                                                Sincerely,



                                                                                                Robert J. Freeman
                                                                                                Executive Director


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cc: Suffolk Times