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OML-AO-5336

                                                                                    January 22, 2013

E-Mail

TO:                             

FROM:            Camille S. Jobin-Davis, Assistant Director

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 Ms.:

This is in response to your request for an advisory opinion regarding application of the Open Meetings and Freedom of Information Laws to minutes of an executive session, during which, decisions were made to proceed with charges against a tenured employee of a school district under Education Law §3020-a.  Specifically, you asked whether such minutes need include a record of each charge voted upon during the executive session, including how each member voted.

In this regard, and as you are aware, the Open Meetings Law contains direction concerning minutes of meetings and provides what might be viewed as minimum requirements pertaining to their contents. Specifically, §106 states 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 be available to the public within one week from the date of the executive session.”

In view of the foregoing, as a general rule, a public body may take action during a properly convened executive session [see Open Meetings Law, §105(1)]. If action is taken during an executive session, minutes reflective of the action, the date and the vote must generally be recorded in minutes pursuant to §106(2) of the Law. If no action is taken, there is no requirement that minutes of the executive session be prepared.  And, as confirmed by your counsel, minutes of executive sessions need not include information that may be withheld under the Freedom of Information Law.

With regard to minutes of executive sessions, although §106(2) refers to minutes of executive session when action is taken, only in rare instances may a board of education take action during an executive session.  As a general rule, a public body may take action during a properly convened executive session [see Open Meetings Law, §105(1)].  In the case of most public bodies, if action is taken during an executive session, minutes reflective of the action, the date and the vote must be recorded in minutes pursuant to §106(2) of the law.  If no action is taken, there is no requirement that minutes of the executive session be prepared.  Various interpretations of the Education Law, §1708(3), however, indicate that, except in situations in which action during a closed session is permitted or required by statute, a school board cannot take action during an executive session [see United Teachers of Northport v. Northport Union Free School District, 50 AD 2d 897 (1975); Kursch et al. v. Board of Education, Union Free School District #1, Town of North Hempstead, Nassau County, 7 AD 2d 922 (1959); Sanna v. Lindenhurst, 107 Misc. 2d 267, modified 85 AD 2d 157, aff'd 58 NY 2d 626 (1982)].  Stated differently, based upon judicial interpretations of the Education Law, a school board generally cannot vote during an executive session, except in those unusual circumstances in which a statute permits or requires such a vote.

One of those circumstances would arise, as in this case, when a board initiates disciplinary charges against an employee pursuant to Education Law §3020-a, which requires that a vote to determine whether probable cause exists be taken during executive session. If, after an executive session, a school board determines to initiate disciplinary proceedings with respect to a particular person, the name of the person would not be required to be included in the minutes. 

Second, notwithstanding the foregoing, we point out that since the Freedom of Information Law was enacted in 1974, it has imposed what some have characterized as an “open vote” requirement. Although that statute generally pertains to existing records and ordinarily does not require that a record be created or prepared [see Freedom of Information Law, §89(3)], an exception to that rule involves voting by agency members. Specifically, §87(3) of the Freedom of Information Law has long required that:

“Each agency shall maintain:
(a) a record of the final vote of each member in every agency proceeding in which the member votes...”

Stated differently, when a final vote is taken by members of an agency, a record must be prepared that indicates the manner in which each member who voted cast his or her vote. Further, in an Appellate Division decision that was affirmed by the Court of Appeals, it was found that “[t]he use of a secret ballot for voting purposes was improper”, and that the Freedom of Information Law requires “open voting and a record of the manner in which each member voted” even when a vote is taken during an executive session [Smithson v. Ilion Housing Authority, 130 AD 2d 965, 967 (1987), aff'd 72 NY 2d 1034 (1988)].

In the situation that you have presented, the Board voted on each charge during the executive session, and upon returning to public session, the Board voted on a summary resolution, finding probable cause to initiate a §3020-a proceeding.  Not all of the votes in executive session were unanimous.  Your questions are what is required to be recorded in the minutes, what is best practice, and what are acceptable alternatives for the Board to consider.

Based on our interpretation of the requirements set forth above, a record of each vote would be required to be kept, including how each member voted.  The minutes of each vote need not include information that is not required to be disclosed pursuant to provisions of FOIL.  Accordingly, we recommend that minutes of executive session contain language that memorializes how many of the charges received a unanimous vote and without indicating what the charges are, how each member voted on each of the remaining charges.  For example, “By unanimous vote, the Board found probable cause for 9 of the thirteen charges.  For four charges, Board Members Smith, Hayes and Levine voted in favor of a finding of probable cause, Board Members Jones and Black against.”  Memorializing the vote as unanimous except for charges numbered 5, 8 and 9, and then setting forth how each member voted would be equally acceptable in our opinion.

As you note, it has been determined that the charges initiated in a §3020-a proceeding need not be disclosed unless and until a charge or charges have been sustained [Herald Co. v School District of City of Syracuse, 430 NYS2d 460 (1984)].

We appreciate your attention to these matters and hope that you find this helpful.

  
CSJ:mm