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OML-AO-05224

VIA EMAIL

From: Freeman, Robert (DOS)
Sent: Wednesday, January 04, 2012 9:02 AM
To:
Subject: RE: Executive Session
Attachments: O2583.wpd

Happy New Year to you and yours.

With respect to your question, based on §105(2) of the Open Meetings Law, the
only people who have the right to attend an executive session are the members
of the Board. That provision states, however, that the Board may authorize
others to attend. That has created issues in relation to the statutory duties
of town clerks. As you know, §30 of the Town Law requires the clerk to
prepare minutes. The Open Meetings Law authorizes public bodies to vote
during executive sessions, and §106 requires the preparation of minutes in
those instances. To give effect to those statutes, it has been suggested that
either: (1) the clerk be invited to attend the entirety of an executive
session; (2) that the clerk be invited to join the executive session when a
vote is about to be taken; or (3) that a board refrain from taking action
during an executive session and vote in public where the clerk and others are
present.

Attached is an opinion dealing with a variety of issues, including the issue
you raised. The discussion appears in the paragraphs beginning with "Lastly."

If you would like to discuss the matter, please feel free to call.

Best,
Bob

Robert J. Freeman
Executive Director
Committee on Open Government
Department of State
One Commerce Plaza
Suite 650
99 Washington Avenue
Albany, NY 12231
Phone: (518)474-2518
Fax: (518)474-1927
Website: www.dos.state.ny.us/coog/index/html