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OML-AO-4682

September 4, 2008

 

E-Mail

TO:                 

FROM:           Robert J. Freeman, Executive Director

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 hope that you will accept my apologies for the delay in response.

            According to your letter, the Board of Trustees in the Village of Stamford “keeps having executive session meetings”, and one such executive session involved discussion of the budget.  Further, after a meeting, you indicated that the mayor “asked the board if they wanted to go into executive session to talk about wages for employees.”  You asked whether that is proper, and expressed the belief that “wages were open to the public.”    

            In this regard, first, the phrase “executive session” is defined by §102(3) of the Open Meetings Law to mean a portion of an open meeting during which the public may be excluded.  That being so, an executive session is not separate from an open meeting, but rather is a portion of an open meeting during which the public may be excluded.

            Second, 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. 

            In most instances, discussions involving a budget must be conducted in public, for none of the grounds for entry into executive session would apply.  Often a discussion concerning the budget has an impact on personnel.  Nevertheless, and despite its frequent use, 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 involves staff reductions or layoffs due to budgetary concerns, the issue in my view would involve matters of policy.  Similarly, if a discussion of possible layoff 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 none of the instances described would the focus involve a "particular person" and how well or poorly an individual has performed his or her duties.  To reiterate, 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).

            Since you referred to discussions relating to “wages for employees”, if they involved employees as a group, i.e., consideration of an across the board increase of a certain percentage for all employees of the highway department, and assuming that those employees are not members of a union, there would be no basis for entry into executive session.  On the other hand, if the discussion focuses on a particular employee, his/her performance, and whether he/she merits an increase in salary, I believe that §105(1)(f) could properly be asserted.  In that situation, the discussion would involve the “employment history of a particular person.”

            Lastly, although the performance of particular employees may be properly be discussed during an executive session, your comment concerning public to access to wages is accurate.  In that context, relevant is the Freedom of Information Law, which pertains to public access to government records.  As a general matter, that law is based upon a presumption of access.  Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (j) of the Law.

            I note that the grounds for entry into executive session in the Open Meetings Law and the grounds for withholding records under the Freedom of Information Law are not necessarily completely consistent.  With respect to your comment, the Freedom of Information Law specifies that each agency, such as a village, must maintain a record indicating the name, public office address, title and salary of every officer or employee of the agency [see §87(3)(b)].  Further, based on judicial decisions,  that record or its equivalent has long been accessible to the public.

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

 

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