February 18, 2009
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.
I have received your letter in which you raised several issues and questions, and I will attempt to address each of them.
The matter relates to meetings conducted by the Town Board of the Town of North Collins “entirely” in executive session for the purpose of negotiating salaries of individuals who are not members of public employee unions. In this regard, as you are aware, paragraphs (a) through (h) of §105(1) of the Open Meetings Law. Since the discussion did not involve union members, the only exception that may be relevant is paragraph (f), which authorizes a public body, such as a town board, to enter into 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...”
If the discussion involved the salaries of groups of individuals, such as all town board members, or all appointees, across the board, the focus would not have involved any “particular person”, and I do not believe that an executive session could properly have been held.
Next, you wrote that the Town Attorney indicated that there is no provision that would have permitted you to be present during an executive session. That is not so, §105(2) of the Open Meetings Law specifies that a public body may authorize you or others to attend.
Lastly, because you were not present at the meetings during which the discussions to which you referred occurred, you asked “how do [you] report these meetings in the minutes?” In this regard, §106 of the Open Meetings Law pertains to minutes of meetings. With respect to executive sessions, if no action is taken during those sessions, there is no requirement that minutes be prepared. With respect to open portions of a meeting, the law requires that minutes, at a minimum, consist of a record or summary of motions, proposals, resolutions, action taken, and votes of the members. If, for example, the only action taken during a meeting involved a motion to enter into executive session, the minutes must include reference to such a motion and the vote of the members.
Section 30(1) of the Town Law states that the town clerk shall attend all meetings of the town board and prepare minutes. However, subdivision (10) of §30 provides that:
"In the event that the town clerk is absent or unable to act and there is no duly appointed and qualified deputy town clerk present and able to act, the town board may appoint as deputy town clerk any person other than a member of the town board, provided, however, that such person be qualified as provided in section three of the public officers law and section twenty-three of this chapter."
As I understand the foregoing, if neither the clerk nor a deputy clerk is available to take minutes at a town board meeting, the board can designate any resident of the town, other than a member of the board, to do so.
It is suggested that minutes include reference to any of the actions required to be recorded pursuant to the Open Meetings Law (i.e., a motion to enter into executive session), with a notation that you were absent from the meeting.
I hope that I have been of assistance.
cc: Town Board