September 21, 2009
I am in receipt of your correspondence in which you expressed disagreement with the opinion offered by Camille Jobin-Davis on August 24.
You indicated that “the discussion concerning the renewal of the lease, should not be public, as it might end up in litigation should the lease not be renewed should the Village give the district a vacate order, which surely would go to litigation.”
As you know, a public body has the authority to enter into executive session only for the purposes set forth in §105(1) of the Open Meetings Law. To reiterate, based on case law interpreting the “litigation exception” cited in the August 24 opinion, a belief that a discussion or a decision could ultimately lead to litigation, without more, is an insufficient reason for entry into executive session. Specifically, it has been held that:
"The purpose of paragraph d 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 AD2d 612, 613, 441 NYS2d 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 AD2d 840, 841 (1983)].
Based on the decisions cited above, all of which were rendered by the Appellate Division, Second Department, which includes Nassau County, only to the extent that a discussion involves litigation strategy would an executive session be properly held under §105(1)(d).
Enclosed is a copy of Mr. Tarleton’s request for an advisory opinion dated July 23.
I hope that the foregoing serves to clarify your understanding and that I have been of assistance.
Robert J. Freeman
cc: Robert Tarleton