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OML-AO-4928

                                              
June 18, 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 facts presented in your correspondence.

Dear

           We have received your letter in which you requested an advisory opinion concerning the Open Meetings Law.

           Your letter was prepared in response to an advisory opinion sent to the Saugerties Central School District Board of Education concerning executive sessions held to discuss grievances initiated based on allegations of violations of a collective bargaining agreement. In short, it was advised that a grievance does not involve collective bargaining negotiations or litigation and that the subject of the grievance is the key factor in determining whether a discussion of the matter may be conducted during an executive session pursuant to §105(1)(f) of the Open Meetings Law.

           You asked that we revisit our opinion based on your interpretation of collective bargaining negotiations and litigation. Further, you requested clarification regarding the Board’s ability to discuss cost saving proposals and/or the economic difficulties of the District, and publication of the subject matter for consideration in executive session.

           In this regard, first, the Open Meetings Law is permissive. A public body, such as a board of education, is not required to conduct executive sessions. As you know, 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. Therefore, although a public body may conduct an executive session in accordance with paragraphs (a) through (h) of § 105 (1), it is not required to do so, and it may do so only when a motion is approved by a majority vote of a board.

           Second, as mentioned in our correspondence to the District, “§105 (1)(e) permits a public body to discuss collective negotiations under the Taylor Law in executive session.” Our view remains “that a grievance does not involve collective negotiations, but rather whether the terms of an existing agreement are being carried out in accordance with the agreement. Therefore, [we] do not believe that consideration of a grievance could properly occur in executive session based on § 105 (1)(e).” Similarly, you indicated that “under the parties’ collective bargaining agreement a grievance is a claimed violation, misapplication, or misinterpretation of an expressed provision of the agreement.”  In our view, a claimed violation, misapplication, or misinterpretation of a collective bargaining agreement cannot be equated with collective negotiations themselves. We believe that negotiations occur prior to and lay the groundwork for an agreement. A grievance on the other hand, is initiated after negotiations are concluded and an agreement has been reached.

           With respect to your contention that a grievance proceeding can be equated with litigation, Black’s Law Dictionary (8th ed. 2004), defines the word litigation to mean:

“The purpose of carrying on a lawsuit <the attorney advised his client to make a generous settlement offer in order to avoid litigation>, 2. A lawsuit itself <several litigations pending before the court>.”  Merriam Webster’s Online Dictionary defines the verb to litigate as follows: “to carry on a legal contest by judicial process.”

           Equally important, in construing the exception which you address in your letter concerning litigation as a reason to enter in executive session under § 105 (1)(d), 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)].

In our view, after careful review of the critical terms, "litigation" involves a judicial contest, and we do not believe that the discussion of a grievance with or by a school board occurring prior to any contractually required arbitration involves a judicial contest. Furthermore, we believe that the exception is intended to permit a public body to discuss its litigation strategy behind closed doors, so as to avoid disclosure of that strategy to its adversary. As such, §105(1)(d) would not in our view be applicable as a basis for entry into executive session.

           From our perspective, once again, when a board is discussing a grievance, it is likely that the only ground for entry into executive session that might be pertinent would be §105(1)(f). That provision 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..."

If a grievance pertains to a particular person in relation to a subject described in that provision, an executive session would appear to be appropriate. For instance, if an employee has complained that the air quality in his office is making her/him ill, the matter may involve one’s medical history. If, however, the grievance involves the policy concerning duties applicable to all employees, such as the time employees must appear for work, we do not believe that there would be any basis for conducting an executive session under §105(1)(f).

           It is our opinion, that the grievance described in your letter concerning contractual discrepancies between the two parties is a policy issue due to the fact that it does not affect one employee, but many union members. As such, the grievance at issue could not, in our view, be discussed under §105(1)(f) in an executive session.

           Next, §105 (1) requires that a motion be made by a member of the public body before entering into an executive session. Only a member of the public body can do so. However, there is nothing that could preclude a member from being persuaded by members of the public to introduce such a motion regarding a permitted subject area under §105(1).

           In a related vein, 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. Cty., Chemung Cty., July 21, 1981; note: the Open Meetings Law has been renumbered and §100 is now §105].

The Open Meetings Law requires only that notice of a meeting must indicate only the time and place of a meeting. However, when it is likely that an executive session will be held, notice or an agenda might indicate that a motion to enter into executive session will be made to discuss a certain topic in accordance with one of the grounds for entry into executive session.

           Lastly, in general, discussions of costs and saving measures must ordinarily be considered in public. Issues of that nature relate to the manner in which a governmental entity carries out its duties and the means by which public monies are allocated. That being so, a discussion of that nature would not, in our view, fall within any of the grounds for entry into executive session. 

           We hope we have been of assistance.

                                                                                                Sincerely,

 

                                                                                                Robert J. Freeman
                                                                                                Executive Director

RJF:JBG:jm

cc:  George Heidcamp, Board of Education
Denyse Ortlieb, Saugerties Teachers Association