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OML-AO-4621

 

 

                                                                                    May 5, 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 the materials relating to it and hope that you will accept my apologies for the delay in response.  You have sought an advisory opinion concerning three incidents that you believe indicate that “the Town of Callicoon Town Board has run afoul of the New York State Open Meetings Law.”

            The first pertains to an executive session held to engage in a “personnel discussion” which led to the creation of a parttime position of deputy code enforcement officer at a salary of ten thousand dollars.  Another relates to a different meeting during which, again, the basis of the executive session was “a personnel discussion”, and the discussion appears to have involved approval of “a banking resolution detailing whom from the town government could sign checks drawn on the bank’s account.”  The remaining incident dealt with “an unadvertised town board ‘workshop’” during which a motion was made to conduct a “special emergency meeting.”  Based on a contention that time did not allow notice to be given, a “waiver” of notice was prepared and signed by the members of the Board.

            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. 

            Although it is used frequently, the term "personnel" appears nowhere in the Open Meetings Law.  It is true that one of the grounds for entry into executive session often relates to personnel matters.  From my perspective, however, 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 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 or perhaps the creation or elimination of positions, I do not believe that §105(1)(f) could be asserted, even though the discussion may relate to "personnel".  For example, if a discussion of possible layoffs relates to positions and whether those positions should be retained or abolished, the discussion would involve the means by which public monies would be allocated. 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) 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).

            Insofar as the discussion at the first meeting involved the creation of a position or the salary that should be accorded to that position, I do not believe that there would have been a basis for conducting an executive session.  Similarly to the extent that the discussion involving the ability to sign checks dealt with the functions associated with certain position in Town government, an executive session, in my opinion, could not validly have been held.  In neither of those instances would the focus have been a “particular person” in relation to a subject found in §105(1)(f).

            Next, 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.

            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)].

            Second, there are two statutes that relate to notice of special meetings held by town boards.  The phrase “special meeting” is found in §62(2) of the Town Law.  That provision, from my perspective, deals with unscheduled meetings, rather than meetings that are regularly scheduled, and states in relevant part that:

“The supervisor of any town may, and upon written request of two members of the board shall within ten days, call a special meeting of the town board by giving at least two days notice in writing to the members of the board of the time when and place where the meeting is to be held.”

The provision quoted above pertains to notice given to members of a town board, and the requirements imposed by §62 are separate from those contained in the Open Meetings Law. 

            Section 104 of the Open Meetings Law 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 post 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.  

            Significantly, there is nothing in the Town Law or the Open Meetings Law that makes reference to or authorizes that notice of meeting be waived.

            Lastly, based on the judicial interpretation of the Open Meetings Law, there is no legal distinction between a "workshop” and a meeting.  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 constitute a "meeting" subject to the Open Meetings Law that must be preceded by notice given in accordance with §104 of the Law. Further, unless the Town Board has adopted a rule to the contrary, nothing would preclude the Board from taking action at a work session.  Similarly, the Board is subject to the same requirements pertaining to notice, openness, and the ability to enter into an executive session relative to a work session or workshop as a regular meeting.

            In an effort to enhance understanding of and compliance with the Open Meetings Law, a copy of this opinion will be sent to the Town Board.

            I hope that I have been of assistance.

                                                                                                Sincerely,

 

                                                                                                Robert J. Freeman
                                                                                                Executive Director

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cc: Town Board