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OML-AO-4889

                                                                                                April 9, 2010

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, except as otherwise indicated.

Dear

            We are in receipt of your request for an advisory opinion regarding application of the Open Meetings Law to gatherings of the Northport-East Northport School District Board of Education.  Among other issues, you questioned the Board’s procedure for entry into executive sessions and the propriety of topics discussed in executive session.  In addition, you attached a copy of a notice of a Special Meeting of the Board, as follows:

“It is anticipated that the Board will act upon a resolution to convene an Executive Session to discuss matters leading to the appointment of particular persons.  (This executive session is closed to the public).  Wednesday, January 13, 2010 at 6:45.”

            In response to our notification, general counsel to the Board wrote to express his response on behalf of the Board, a copy of which is attached.

            In an effort to provide guidance with respect to these issues, we offer the following comments, and to be as efficient as possible, recommend review of previously issued advisory opinions for more in-depth treatment of certain issues.

            First, and with regard to the procedure for entry into executive session, we agree that a public body cannot conduct an executive session prior to a public meeting. Every meeting must be convened as an open meeting, for §102(3) of the Open Meetings Law defines the phrase "executive session" to mean a portion of an open meeting during which the public may be excluded. That being so, it is clear that an executive session is not separate and distinct from an open meeting, but rather that it is a part of an open meeting. Moreover, 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..."

            Based on the foregoing, it has been consistently advised that a public body, in a technical sense, cannot schedule or conduct an executive session in advance of a meeting, because a vote to enter into an executive session must be taken at an open meeting during which the executive session is held. In a decision involving the propriety of scheduling executive sessions prior to meetings, it was held that:

"The respondent Board prepared an agenda for each of the five designated regularly scheduled meetings in advance of the time that those meetings were to be held. Each agenda listed 'executive session' as an item of business to be undertaken at the meeting. The petitioner claims that this procedure violates the Open Meetings Law because under the provisions of Public Officers Law section 100[1] provides that a public body cannot schedule an executive session in advance of the open meeting. Section 100[1] provides that a public body may conduct an executive session only for certain enumerated purposes after a majority vote of the total membership taken at an open meeting has approved a motion to enter into such a session. Based upon this, it is apparent that petitioner is technically correct in asserting that the respondent cannot decide to enter into an executive session or schedule such a session in advance of a proper vote for the same at an open meeting" [Doolittle, Matter of v. Board of Education, Sup. Ct., Chemung Cty., July 21, 1981; note: the Open Meetings Law has been renumbered and §100 is now §105].

            For the reasons expressed in the preceding commentary, a public body cannot in our view
schedule an executive session in advance of a meeting. In short, because a vote to enter into an executive session must be made and carried by a majority vote of the total membership during an open meeting, technically, it cannot be known in advance of that vote that the motion will indeed be approved. 

            In the example that you provided, above, the School District implemented an alternative method of achieving the desired result that complies with the letter of the law.  Rather than scheduling an executive session, the Board, in a notice of a special meeting for January 13, and in agendas for the Board meetings outlined below, referred to a motion to enter into executive session to discuss a certain subject.  We interpret the Board’s notice to mean that there is intent to enter into an executive session as a considerate way of alerting the public that an executive session is likely to be held (rather than scheduled), and implicitly, that there may be no overriding reason for arriving at the very beginning of a meeting.  See OML-AO-3339.

            Second, in consideration of the foregoing, a motion to conduct an executive session must include reference to the subject or subjects to be discussed and it 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. Therefore, a public body may not conduct an executive session to discuss the subject of its choice.

            Upon review of minutes from four Board meetings held in September and October of 2009, we note that at each meeting the Board convened at 6:30 p.m. and unanimously agreed to enter into executive session to discuss one of the following four issues: 1) matters pertaining to custodial negotiations; 2) matters pertaining to contract negotiations; 3) matters pertaining to an individual student; and 4) matters pertaining to an individual employee and individual students.  In our opinion, based on this documentation, the Board properly opened the meeting and entered into executive session to hold discussions that were likely appropriate for closed or executive session.  See OML-AO-3863 (issues pertaining to students) OML-AO-2748 (employment history of a particular person), and OML-AO-4346 (collective bargaining negotiations).  With respect to questions regarding the Board’s authority to discuss “matters of finances and audit findings” in executive session, we recommend review of OML-AO-4257.

            With respect to your questions concerning agendas, there is no reference in the Open Meetings Law to agendas. Consequently, a public body, such as the Board, may choose to prepare or follow an agenda, and may have adopted by laws or policies regarding same, but there is no statutory obligation to do so. 

            With respect to your questions concerning the Board’s obligations to include comments in the minutes, please note that the Open Meetings Law contains what might be characterized as minimum requirements concerning the contents of minutes. Specifically, §106 of the Open Meetings Law provides that:

"1. Minutes shall be taken at all open meetings of a public body which shall consist of a record or summary of all motions, proposals, resolutions and any other matter formally voted upon and the vote thereon.

2. Minutes shall be taken at executive sessions of any action that is taken by formal vote which shall consist of a record or summary of the final determination of such action, and the date and vote thereon; provided, however, that such summary need not include any matter which is not required to be made public by the freedom of information law as added by article six of this chapter.

3. Minutes of meetings of all public bodies shall be available to the public in accordance with the provisions of the freedom of information law within two weeks from the date of such meetings except that minutes taken pursuant to subdivision two hereof shall beavailable to the public within one week from the date of the executive session."

Accordingly, minutes need not consist of a verbatim account of everything that was said; on the contrary, so long as the minutes include the kinds of information described in §106, we believe that they would be appropriate and meet legal requirements. Most importantly, we believe that minutes must be accurate.

            In situations in which members of public bodies have met with resistance when attempting to include their comments in the minutes, it has been advised that a motion could be made to include their statements in the minutes. If such a motion is approved, the inclusion of a statement is guaranteed. We recognize that you are not a member of the Board. Nevertheless, we believe that you may ask any member to introduce a similar motion in an effort to ensure that your statement becomes part of the minutes.

            With respect to the opportunity for public comment, as you may know, while the Open Meetings Law clearly provides the public with the right "to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy" (see Open Meetings Law, §100), the Law is silent with respect to public participation. Consequently, by means of example, if a public body, such as the Board, does not want to answer questions or permit the public to speak or otherwise participate at its meetings, we do not believe that it would be obliged to do so. On the other hand, a public body may choose to answer questions and permit public participation, and many do so. When a public body does permit the public to speak, we believe that it should do so based upon reasonable rules that treat members of the public equally.

             Although public bodies have the right to adopt rules to govern their own proceedings (see e.g., Town Law §63 and Education Law §1709), the courts have found in a variety of contexts that such rules must be reasonable. For example, although a board of education may "adopt by laws and rules for its government and operations", in a case in which a board's rule prohibited the use of tape recorders at its meetings, the Appellate Division found that the rule was unreasonable, stating that the authority to adopt rules "is not unbridled" and that "unreasonable rules will not be sanctioned" [see Mitchell v. Garden City Union Free School District, 113 AD 2d 924, 925 (1985)]. Similarly, if by rule, a public body chose to permit certain citizens to address it for ten minutes while permitting others to address it for three, or not at all, such a rule, in our view, would be unreasonable.

            Additionally, it has long been held that those in attendance at open meetings may tape or video record the meetings, so long as the use of a recording device is not obtrusive or disruptive [see e.g., Mitchell v. Board of Education of the Garden City Union Free School District, supra, People v. Ystueta, 99 Misc.2d 1105, 418 NYS2d 508 (Suffolk Cty., 1979), Peloquin v. Arsenault, 162 Misc.2d 306, 616 NYS2d 716 (Franklin Cty, 1994), Csorny v. Shoreham-Wading River Central School District, 305 AD2d 83, 759 NYS2d 513 (2nd Dept., 2003)].  For an in-depth advisory opinion regarding the recording of public meetings, see OML-AO-3155, attached.  We note that legislation that would codify this case law was recently passed by both the Senate and Assembly, and is currently awaiting action by Governor Paterson (A.10093/S.3195).

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

                                                                                                Sincerely,

 

                                                                                               Camille S. Jobin-Davis
                                                                                               Assistant Director

CSJ:jm

Encs.

cc: Beth M. Nystrom, District Clerk
John H. Gross