From: Freeman, Robert (DOS)
Sent: Thursday, June 09, 2011 10:47 AM
Subject: RE: Open meetings
Your letter raises several issues.
First, the Board, in a technical sense, cannot "schedule" an executive session
in advance of a meeting. As you know, a motion to enter into executive
session must be made during an open meeting, and the motion must be carried by
a majority vote of the total membership. Because it cannot be known with
certainty that a motion will be approved, it has been advised by this office
and held judicially that executive sessions cannot be scheduled in advance.
Second, the only reference to "negotiations" in the Open Meetings Law appears
in §105(1)(e), which pertains to collective bargaining negotiations involving
a public employee union. However, depending on the nature of the discussion,
§105(1)(f), the so-called "personnel" exception (even though that term does
not appear anywhere in the eight grounds for entry into executive session),
might apply. That provision permits a public body to conduct an 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". The issue that you described might
involve consideration of the employment history of or a matter leading to the
employment of a particular person or corporation, in which case an executive
session could properly be held. A motion to discuss negotiations, however,
would not be sufficiently descriptive to enable the public to know that there
may be a proper basis for conducting an executive session.
It has been suggested on many occasions that in instances in which the
propriety of a proposed executive session is questionable, you or someone else
might share a copy of §105(1) of the Open Meetings Law, which lists the eight
grounds for entry into executive session, with a public body, and ask which of
the grounds might apply.
Third, it was held thirty years ago by the Appellate Division, Second
Department, that §105(1)(d), the "litigation" exception for executive session,
is intended to enable a public body to discuss its litigation strategy in
private, so as not to divulge its strategy to its adversary. One of the
decisions involved a situation in which a town board invited its adversary in
litigation to discuss the possibility of a settlement. The Court found that
once the adversary joins the discussion, the board loses its ability to
conduct an executive session [see Concerned Citizens to Review the Jefferson
Mall v. Town Board of the Town of Yorktown, 84 AD2d 612, appeal dismissed, 54
NY2d 957 (1981)].
In an effort to enhance compliance with and understanding of the Open Meetings
Law, a copy of this response is being sent to the Town Attorney.
I hope that I have been of assistance.
Robert J. Freeman
Committee on Open Government
Department of State
One Commerce Plaza
99 Washington Avenue
Albany, NY 12231