From: Jobin-Davis, Camille (DOS)
Sent: Friday, May 09, 2008 4:26 PM
Subject: Open Meetings Law - internal audit
As promised, this will confirm my opinion that there is no basis in the Open Meetings Law for a school board to enter into executive session to discuss issues with respect to an internal audit.
Please note that pursuant to the Education Law, an audit committee of a school district may enter into executive session for purposes in addition to those set forth in the Open Meetings Law, as outlined in section 2116-c. Specifically, subdivision (7) of section 2116-c permits, in part, as follows:
“…a school district audit committee may conduct an executive session pursuant to section one
hundred five of the public officers law [the Open Meetings Law] pertaining to any matter set forth in paragraphs b, c, and d of subdivision five of this section.”
Subdivision (5) provides as follows:
“5. It shall be the responsibility of the audit committee to:
(a) provide recommendations regarding the appointment of the external auditor for the
(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 the trustees or board of education in interpreting such documents;…” (emphasis mine)
In sum, the language of paragraphs (b), (c) and (d) provides additional grounds for an audit committee to enter into executive session, and limits those discussions to those concerning external audits only.
Subdivision (6) of section 2116-c of the Education Law refers specifically to an audit committee’s responsibilities with respect to internal audits, however, it does not include language granting additional grounds for entry into executive session. I have attached a copy of the entire text of Education Law section 2116-c.
Accordingly, it is my opinion that an audit committee of a school district may enter into executive session only with respect to external audit issues as described in paragraphs (b), (c) and (d).
With respect to the corresponding FOIL issue, and public access to internal audits, attached is a recent advisory opinion that I believe you will find helpful.
Please contact me if you have further questions.
Camille S. Jobin-Davis, Esq.
NYS Committee on Open Government
Department of State