September 16, 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 asked that I review minutes of meetings of the Mamaroneck Town Board for the purpose of offering advice concerning the adequacy of its motions for entry into executive sessions.
In this regard, having reviewed the minutes of several meetings, I note that §106 of the Open Meetings Law requires that minutes consist of a “record or summary” of motions; it does not require that minutes contain a verbatim account of a motion. Whether the references to motions to enter into executive session as they appear in the minutes reflect the entirety of the words used in the motions, or merely a summary of the motions, is unknown to me. Nevertheless, in an effort to provide guidance, I offer the following comments.
By way of background, the Open Meetings 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 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.
The provision that deals with litigation is §105(1)(d), which permits a public body to enter into an executive session to discuss "proposed, pending or current litigation". In construing the language quoted above, it has been held that:
"The purpose of paragraph d is "to enable is to enable a public body to discuss pending litigation privately, without baring its strategy to its adversary through mandatory public meetings' (Matter of Concerned Citizens to Review Jefferson Val. Mall v. Town Bd. Of Town of Yorktown, 83 AD 2d 612, 613, 441 NYS 2d 292). The belief of the town's attorney that a decision adverse to petitioner 'would almost certainly lead to litigation' does not justify the conducting of this public business in an executive session. To accept this argument would be to accept the view that any public body could bar the public from its meetings simply be expressing the fear that litigation may result from actions taken therein. Such a view would be contrary to both the letter and the spirit of the exception" [Weatherwax v. Town of Stony Point, 97 AD 2d 840, 841 (1983)].
Based upon the foregoing, I believe that the exception is intended to permit a public body to discuss its litigation strategy behind closed doors, rather than issues that might eventually result in litigation.
With regard to the sufficiency of a motion to discuss litigation, it has been held that:
"It is insufficient to merely regurgitate the statutory language; to wit, 'discussions regarding proposed, pending or current litigation'. This boilerplate recitation does not comply with the intent of the statute. To validly convene an executive session for discussion of proposed, pending or current litigation, the public body must identify with particularity the pending, proposed or current litigation to be discussed during the executive session" [Daily Gazette Co. , Inc. v. Town Board, Town of Cobleskill, 44 NYS 2d 44, 46 (1981), emphasis added by court].
As such, a proper motion might be: "I move to enter into executive session to discuss our litigation strategy in the case of the XYZ Company v. the Town of Mamaroneck."
One of the phrases that appears repeatedly in the minutes is “employment history.” The provision concerning the possibility of discussing that subject in executive session is §105(1)(f), which permits a public body 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..." (emphasis added).
Due to the presence of the term "particular" in §105(1)(f), I believe that a discussion of "employment history" may be considered in an executive session only when the subject involves a particular person or persons.
It has been advised that a motion involving §105(1)(f) should be based on its specific language. 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 my 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.
Similarly, with respect to "collective bargaining", the only ground for entry into executive session that refers to that topic is §105(1)(e), which permits a public body to conduct an executive session to discuss "collective negotiations pursuant to article fourteen of the civil service law." Article 14 of the Civil Service Law is commonly known as the "Taylor Law", which pertains to the relationship between public employers and public employee unions. As such, §105(1)(e) permits a public body to hold executive sessions to discuss collective bargaining negotiations with a public employee union.
In terms of a motion to enter into an executive session held pursuant to §105(1)(e), it has been held that:
"Concerning 'negotiations', Public Officers Law section 100[e] permits a public body to enter into executive session to discuss collective negotiations under Article 14 of the Civil Service Law. As the term 'negotiations' can cover a multitude of areas, we believe that the public body should make it clear that the negotiations to be discussed in executive session involve Article 14 of the Civil Service Law" [Doolittle, supra].
A proper motion might be: "I move to enter into executive session to discuss the collective bargaining negotiations involving the police union."
Lastly, references were made to matters relating to the leasing of real property. The provision of potential relevance, §105(1)(h), permits a public body to conduct an executive session to discuss “the proposed acquisition, sale or lease of real property...but only when publicity would substantially affect the value thereof.” In some circumstances, disclosure of the location of a parcel could substantially affect the value of the parcel. For instance, if a municipality wants to purchase a parcel for a new facility and is considering several locations, none of which are known to the public, disclosure of the sites could result in speculation or current owners raising prices, to the detriment of taxpayers. That being so, it has been advised that a motion under §105(1)(h) should indicate that the public discussion of the proposed action would “substantially affect the value” of the property.
I hope that I have been of assistance.
cc: Town Board