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OML-AO-4572

                                   
February 22, 2008

 

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 appreciate your suggestion and kind words.  You have requested an advisory opinion concerning “three recent incidents in which [you] believe the Town of Callicoon has run afoul of the New York State Open Meetings Law.”

            The first involved a situation in which the Town Board approved a motion to conduct an executive session for a “personnel discussion.”  The closed session was held for twenty minutes, and upon returning to the open meeting, “the board approved a resolution creating a $10,000 salary for the position of part-time Deputy Code Enforcement Officer.”

            From my perspective, there was likely no basis for conducting an executive session to discuss the salary accorded to the position.  In this regard, I offer the following comments.

            First, as a general matter, the Open Meetings Law is based upon a presumption of openness. Stated differently, meetings of public bodies must be conducted open to the public, unless there is a basis for entry into executive session.  Moreover, 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 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, although it is used frequently, the term "personnel" appears nowhere in the Open Meetings Law.  While one of the grounds for entry into executive session often relates to personnel matters, the term is overused and is frequently cited in a manner that is misleading or causes unnecessary confusion. To be sure, some issues involving "personnel" may be properly considered in an executive session; others, in my view, cannot. Further, certain matters that have nothing to do with personnel may be discussed in private under the provision that is ordinarily cited to discuss personnel.

            The language of the so-called "personnel" exception, §105(1)(f) of the Open Meetings Law, is limited and precise. In terms of legislative history, as originally enacted, the provision in question permitted a public body to enter into an executive session to discuss:

"...the medical, financial, credit or employment history of any person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of any person or corporation..."

Under the language quoted above, public bodies often convened executive sessions to discuss matters that dealt with "personnel" generally, tangentially, or in relation to policy concerns.  However, the Committee consistently advised that the provision    was intended largely to protect privacy and not to shield matters of policy under the guise of privacy.

            To attempt to clarify the Law, the Committee on Open Government recommended a series of amendments to the Open Meetings Law, several of which became effective on October 1, 1979.  The recommendation made by the Committee regarding §105(1)(f) was enacted and states that a public body may 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..." (emphasis added).

Due to the insertion of the term "particular" in §105(1)(f), I believe that a discussion of "personnel" may be considered in an executive session only when the subject involves a particular person or persons, and only when at least one of the topics listed in §105(1)(f) is considered.

            When a discussion concerns matters of policy, such as the manner in which public money will be expended or allocated, the functions of a department, creation or elimination of positions, or the salary accorded to a position, regardless of who might hold that position, I do not believe that §105(1)(f) could be asserted, even though the discussion may relate to "personnel". In the circumstance that you described, the issue would not have focused on any “particular person”, nor would it have involved the subjects relating to a particular person delineated in §105 (1)(f).  In short, in order to enter into an executive session pursuant to §105(1)(f), I believe that the discussion must focus on a particular person (or persons) or corporation in relation to a topic listed in that provision.  As stated judicially, "it would seem that under the statute matters related to personnel generally or to personnel policy should be discussed in public for such matters do not deal with any particular person" (Doolittle v. Board of Education, Supreme Court, Chemung County, October 20, 1981).

            Third, you referred to a motion that the Town Board should hold “a special emergency meeting”, and a member of the Board said that “notice of the meeting should be given but that time did not allow notice to be given.” That being so, a “waiver” was prepared providing as follows:

“We the Town of Callicoon Town Board, waive advertisement and notice of special emergency meeting held at the Town Hall, Jeffersonville, NY on Friday, January 4, 2008.”

            In short, there is no provision in the Open Meetings Law that authorizes a public body to waive the notice requirements.  Specifically, §104 of that statute provides that: 

"1.  Public notice of the time and place of a meeting scheduled at least one week prior thereto shall be given to the news media and shall be conspicuously posted in one or more designated public locations at least seventy-two hours before each meeting.  

2.  Public notice of the time and place of every other meeting shall be given, to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a reasonable time prior thereto.  

3. The public notice provided for by this section shall not be construed to require publication as a legal notice." 

Stated differently, if a meeting is scheduled at least a week in advance, notice of the time and place must be given to the news media and to the public by means of posting in one or more designated public locations, not less than seventy-two hours prior to the meeting.  If a meeting is scheduled less than a week an advance, again, notice of the time and place must be given to the news media and posted in the same manner as described above, "to the extent practicable", at a reasonable time prior to the meeting.  Although the Open Meetings Law does not make reference to "special" or "emergency" meetings, if, for example, there is a need to convene quickly, the notice requirements can generally be met by telephoning or faxing notice of the time and place of a meeting to the local news media and by posting notice in one or more designated locations.  

            Further, the judicial interpretation of the Open Meetings Law suggests that the propriety of scheduling a meeting less than a week in advance is dependent upon the actual need to do so.  As stated in Previdi v. Hirsch:

"Whether abbreviated notice is 'practicable' or 'reasonable' in a given case depends on the necessity for same.  Here, respondents virtually concede a lack of urgency: They deny petitioner's characterization of the session as an 'emergency' and maintain nothing of substance was transacted at the meeting except to discuss the status of litigation and to authorize, pro forma, their insurance carrier's involvement in negotiations.  It is manifest then that the executive session could easily have been scheduled for another date with only minimum delay.  In that event respondents could even have provided the more extensive notice required by POL §104(1).  Only respondent's choice in scheduling prevented this result” [524 NYS2d 643, 645 (1988)].

            I point out that §62 of the Town Law includes reference to special meetings of town boards.  That provision pertains to notice to the members of a board and requires that written notice be given to the members not less than two days prior to a special meeting.  That requirement is separate and distinct from the obligations concerning notice imposed by the Open Meetings Law.

            Next, you referred to a motion to conduct an executive session for a “personnel discussion” that led to action to approve “a banking resolution detailing whom from the town government could sign checks drawn on the town’s account.”  For reasons described earlier in relation to the first situation that you described, it appears unlikely that an executive session could properly have been held.

            Moreover, it has been advised that a motion describing the subject to be discussed as "personnel" is inadequate, and that the motion should be based upon the specific language of §105(1)(f).  For instance, a proper motion might be:  "I move to enter into an executive session to discuss the employment history of a particular person (or persons)".  Such a motion would not in my opinion have to identify the person or persons who may be the subject of a discussion.  By means of the kind of motion suggested above, members of a public body and others in attendance would have the ability to know that there is a proper basis for entry into an executive session.  Absent such detail, neither the members nor others may be able to determine whether the subject may properly be considered behind closed doors.

            It is noted that the Appellate Division confirmed the advice rendered by this office.  In discussing §105(1)(f) in relation to a matter involving the establishment and functions of a position, the Court stated 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).

"Applying these principles to the matter before us, it is apparent that the Board's stated purpose for entering into executive session, to wit, the discussion of a 'personnel issue', does not satisfy the requirements of Public Officers Law § 105 (1) (f).  The statute itself requires, with respect to personnel matters, that the discussion involve the 'employment history of a particular person" (id. [emphasis supplied]).  Although this does not mandate that the individual in question be identified by name, it does require that any motion to enter into executive session describe with some detail the nature of the proposed discussion (see, State Comm on Open Govt Adv Opn dated Apr. 6, 1993), and we reject respondents' assertion that the Board's reference to a 'personnel issue' is the functional equivalent of identifying 'a particular person'" [Gordon v. Village of Monticello, 620 NY 2d 573, 575; 207 AD 2d 55 (1994)].

            Lastly, reference was made to a “workshop.”  In my view, which is based on judicial precedent, there is no legal distinction between a “workshop” and a “meeting.”  In this regard, I offer the following comments.

            By way of background, it is noted that the definition of "meeting" has been broadly interpreted by the courts.  In a landmark decision rendered in 1978, the Court of Appeals, the state's highest court, found that any gathering of a quorum of a public body for the purpose of conducting public business is a "meeting" that must be convened open to the public, whether or not there is an intent to take action and regardless of the manner in which a gathering may be characterized [see Orange County Publications v. Council of the City of Newburgh, 60 AD 2d 409, aff'd 45 NY 2d 947 (1978)]. 

            I point out that the decision rendered by the Court of Appeals was precipitated by contentions made by public bodies that so-called "work sessions" and similar gatherings held for the purpose of discussion, but without an intent to take action, fell outside the scope of the Open Meetings Law.  In discussing the issue, the Appellate Division, whose determination was unanimously affirmed by the Court of Appeals, stated that: 

"We believe that the Legislature intended to include more than the mere formal act of voting or the formal execution of an official document.  Every step of the decision-making process, including the decision itself, is a necessary preliminary to formal action.  Formal acts have always been matters of public record and the public has always been made aware of how its officials have voted on an issue.  There would be no need for this law if this was all the Legislature intended.  Obviously, every thought, as well as every affirmative act of a public official as it relates to and is within the scope of one's official duties is a matter of public concern.  It is the entire decision-making process that the Legislature intended to affect by the enactment of this statute" (60 AD 2d 409, 415).

            The court also dealt with the characterization of meetings as "informal," stating that: 

"The word 'formal' is defined merely as 'following or according with established form, custom, or rule' (Webster's Third New Int.  Dictionary). We believe that it was inserted to safeguard the rights of members of a public body to engage in ordinary social transactions, but not to permit the use of this safeguard as a vehicle by which it precludes the application of the law to gatherings which have as their true purpose the discussion of the business of a public body" (id.). 

Based upon the direction given by the courts, if a majority of a public body gathers to discuss public business, any such gathering, in my opinion, would ordinarily constitute a "meeting" subject to the Open Meetings Law.  Since a workshop held by a majority of a public body is a “meeting”, it would have the same responsibilities in relation to notice and the taking of minutes as in the case of a formal meeting, as well as the same ability to enter into executive sessions.

            I hope that I have been of assistance.

                                                                                                Sincerely,

 

                                                                                                Robert J. Freeman
                                                                                                Executive Director

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cc: Town Board