September 8, 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.
We are in receipt of your request for an advisory opinion concerning application of the Open Meetings Law to certain proceedings of the Gloversville Enlarged School District Board of Education. Specifically, you indicated that after the District’s annual budget was defeated, the Board met to decide whether to adopt a contingency budget or to reduce the size of the proposed budget and conduct another vote. According to your letter, “[a]fter the audience participation portion of the meeting, the Board went into their marathon executive session [two hours and fifteen minutes] and when they emerged they immediately announced that they were adopting a contingency budget and did so, then and there.” In your opinion, “this was a flagrant abuse of the law” and “not the first time the Gloversville Board has violated it.” In this regard, we offer the following comments.
First, by way of background, the Open Meetings Law requires that a procedure be accomplished, during an open meeting, before a public body, such as the Board, may enter into an executive session. Section 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, in our opinion, a discussion concerning the repercussions of adopting a contingency budget or modifying the proposed budget and conducting another vote would not likely fall within any ground for entry into executive session. For example, there would be no basis for entry into executive session to discuss the costs associated with holding a second vote, or the possibilities for reducing spending in the defeated budget proposal to make it more acceptable to voters.
Third, it has been held judicially that :
"...the public body must identify the subject matter to be discussed (See, Public Officers Law § 105 ), 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)”
In short, it is reiterated that a public body may validly conduct an executive session only to discuss one or more of the subjects listed in §105(1) and that a motion to conduct an executive session must be sufficiently detailed to enable the public to know that there is a proper basis for entry into the closed session.
Lastly, in response to your request for an “investigation to prevent this from happening again”, we note that the Committee on Open Government is authorized by law to render legal advice, yet has no investigatory power. Please note that §107 of the Open Meetings Law states in relevant part that:
“Any aggrieved person shall have standing to enforce the provisions of this article against a public body by the commencement of a proceeding pursuant to article seventy-eight of the civil practice law and rules, and/or an action for declaratory judgment and injunctive relief. In any such action or proceeding, the court shall have the power, in its discretion, upon good cause shown, to declare any action or part thereof taken in violation of this article void in whole or in part. “
Further, subdivision (2) of §107 was recently amended (Chapter 397, Laws of 2008) to include and now states that:
“In any proceeding brought pursuant to this section, costs and reasonable attorney fees may be awarded by the court, in its discretion, to the successful party. If a court determines that a vote was taken in material violation of this article, or that substantial deliberations relating thereto occurred in private prior to such vote, the court shall awards costs and reasonable attorney’s fees to the successful petitioner, unless there was a reasonable basis for a public body to believe that a closed session could properly have been held.”
The intent of the amendment is not to encourage litigation. On the contrary, it is designed to enhance compliance and to encourage members of public bodies and those who serve them to be more knowledgeable regarding their duty to abide by the Open Meetings Law. Accordingly, a copy of this opinion will be sent to the members of the Board.
On behalf of the Committee on Open Government, we hope that this is helpful to you.
Camille S. Jobin-Davis
cc: School Board