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OML-AO-4732

 

                                                                                                March 2, 2009

E-mail

TO:                 

FROM:            Camille S. Jobin-Davis, Assistant 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

            We are in receipt of your request for an advisory opinion regarding application of the Open Meetings Law to members of a public body voting to appoint a person to a particular position without articulating the name of the appointee.  You noted that because a board has two weeks to prepare minutes, without clarifying the motion, the public has no ability to determine the nature or the specifics of the vote.  In this regard, we 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. 

            Second, although it is used frequently, the term "personnel" appears nowhere in the Open Meetings Law.  Although one of the grounds for entry into executive session often relates to personnel matters, from our perspective, 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 our 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.

            When the actions taken do not involve consideration of how well or poorly particular public employees are carrying out their duties, we do not believe that there would be a basis for conducting an executive session.

            Further, even when §105(1)(f) may be validly asserted, it has been advised that a motion describing the subject to be discussed as "personnel" or "personnel issues" 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 our 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.

            It is noted that the Appellate Division has 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; 209 AD 2d 55, 58 (1994)].

            In short, the characterization of an issue as a “personnel issue” is inadequate, for it fails to enable the public or even members of the Board to know whether subject at hand may properly be considered during an executive session; however, there is no legal obligation to name the “particular person.”

            With regard to minutes, although §106(2) refers to minutes of executive session when action is taken, only in rare instances may a board of education take action during an executive session.  As a general rule, a public body may take action during a properly convened executive session [see Open Meetings Law, §105(1)].  In the case of most public bodies, if action is taken during an executive session, minutes reflective of the action, the date and the vote must be recorded in minutes pursuant to §106(2) of the law.  If no action is taken, there is no requirement that minutes of the executive session be prepared.  Various interpretations of the Education Law, §1708(3), however, indicate that, except in situations in which action during a closed session is permitted or required by statute, a school board cannot take action during an executive session [see United Teachers of Northport v. Northport Union Free School District, 50 AD 2d 897 (1975); Kursch et al. v. Board of Education, Union Free School District #1, Town of North Hempstead, Nassau County, 7 AD 2d 922 (1959); Sanna v. Lindenhurst, 107 Misc. 2d 267, modified 85 AD 2d 157, aff'd 58 NY 2d 626 (1982)].  Stated differently, based upon judicial interpretations of the Education Law, a school board generally cannot vote during an executive session, except in those unusual circumstances in which a statute permits or requires such a vote.

            Those circumstances would arise, for example, when a board initiates charges against a tenured person pursuant to §3020-a of the Education Law, which requires that a vote to do so be taken during an executive session.  The other instance would involve a situation in which action in public could identify a student.  When information derived from a record that is personally identifiable to a student, the federal Family Educational Rights and Privacy Act (20 USC §1232g) would prohibit disclosure absent consent by a parent of the student.

            In sum, it is likely that if, after an executive session discussion, a school board determines to take action with respect to a particular person, the name of the person would not be required to be mentioned at the time of the vote in public session.  For example, if a school board were to discuss potential candidates to hire during executive session, and upon returning to public session move to offer employment to a particular candidate, indicated by number or code, in our opinion, no names would be required to be mentioned at the meeting or in the minutes of the public session.

            On behalf of the Committee on Open Government, we hope that this is helpful to you.

CSJ:jm