September 4, 2014
FROM: Camille S. Jobin-Davis, Esq., Assistant Director
The staff of the Committee on Open Government is authorized to issued advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.
This is in response to yours regarding application of the Freedom of Information Law and the Open Meetings Law to certain actions taken by the Niskayuna Central School District Board of Education. Specifically, you raised questions involving access to information concerning the Superintendent’s separation from service and the validity of the “goodwill” clause within the Separation Agreement which prohibits the School Board from discussing the Superintendent’s separation except in highly scripted terms. Please accept our apologies for the delay in response.
As you are likely aware, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (l) of the Law.
We note that the Separation Agreement limits the Board’s ability to answer questions and prospectively create written materials, but does not make existing records confidential. While New York’s highest court has consistently interpreted the Freedom of Information Law in a
manner that fosters maximum access, it does not require that an agency create records in response to a request. Please note §89(3)(a), which states in relevant part that:
“Nothing in this article [the Freedom of Information Law] shall be construed to require any entity to prepare any record not in possession or maintained by such entity except the records specified in subdivision three of section eighty-seven...”
Similarly, 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), it is silent with respect to a responsibility to answer questions. Consequently, by means of example, if a public body, such as a school 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.
Accordingly, in our opinion, barring any other legal obligations, such as a subpoena, for example, a Board could contractually obligate itself to limit answers to questions.
Please note that if the agreement contained a clause prohibiting the parties from releasing a copy of that agreement, or from releasing other records of the District, we would offer different advice based on case law, as outlined in the opinion at the following link: http://docs.dos.ny.gov/coog/ftext/f17611.html.
Further, we note Board Policy 9660, adopted February 26, 1996, which specifically prohibits the Board from making an agreement that would prevent it from apprising prospective employers of the reasons(s) that an employee left employment with the District. It is not known whether this policy can be enforced to invalidate the “goodwill” clause in the Separation Agreement.
More importantly perhaps is the District’s apparent lack of compliance with the Open Meetings Law when discussing and executing the Separation Agreement.
In this regard, we note that the Open Meetings Law requires that meetings of public bodies must be conducted open to the public, unless there is a basis for entry into an executive session. The subjects that may properly be considered in executive session are specified in paragraphs (a) through (h) of §105(1) of the Open Meetings Law. Because those subjects are limited, a public body cannot conduct an executive session to discuss the subject of its choice. In addition, the motion must be sufficiently specific to inform the public that the topic or topics for discussion fall under one of the permitted options.
As an example, the language of the so-called “personnel” exception, §105(1)(f) of the Open Meetings Law, is limited and precise. In terms of legislative history, as originally enacted, the provision in question permitted a public body to enter into 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...”
Due to the presence of the term “particular” in §105(1)(f), we believe that a discussion of “employment history” or “matters leading to the employment or dismissal or removal” may be considered in an executive session only when the subject involves a particular person or persons.
It has been advised that a motion involving §105(1)(f) should be based on its specific language. For instance, a proper motion might be: “I move to enter into an executive session to discuss the employment history of a particular person (or persons)”. Such a motion would not in our opinion have to identify the person or persons who may be the subject of a discussion. By means of the kind of motion suggested above, members of a public body and others in attendance would have the ability to believe that there is a proper basis for entry into an executive session.
In 2012, the Appellate Division rendered a decision regarding the specificity of motions for entry into executive session. In Zehner v. Board of Education of Jordan-Elbridge, (91 AD3d 1349, 937 NYS2d 510 [4th Dept. 2012]), the court required a public body to “identify with particularity the topic to be discussed … since only through such identification will the purposes of the Open Meetings Law be realized.” The school board had entered into executive session in three separate scenarios, based on a recitation of the statutory language in §105. Conforming the holding in Daily Gazette v. Town Board, (111 Misc.2d 303 444 NYS2d 44), the court determined that “merely regurgitating” the statutory language was insufficient. In one instance, the court held that when the board entered into executive session to discuss “matters related to the appointment or employment of a particular person,” it must identify the matter as part of the process of searching for a new superintendent.
A bit of history is relevant here. Minutes of all of the meetings of the Board of Education held in the three months prior to the official vote to accept the Separation Agreement (April 4) indicate that the Board met in executive session a total of 8 times, all of which were for discussions described as “matters involving specific students under IDEA and 504,” “issues made confidential by federal law,” and/or “negotiations with bargaining units”. Once, on January 28, 2014, the Board discussed an additional topic “contractual matters.” Although there is a section during every meeting delineated as “Personnel,” only once in the preceding three months was there reference to a discussion during that portion in the meeting, and then, only to accept two retirement applications. At no point from January 2014 through April is there reference to any discussion regarding a particular person’s employment history or matters leading to the dismissal or removal of a particular person.
Minutes from the April 4 meeting indicate that Board President Oriola read the following statement, in pertinent part:
“The Niskayuna Central School District Board of Education and Susan Kay Salvaggio, Superintendent of Schools, have reached a mutual agreement providing for Mrs. Salvaggio’s voluntary separation from her position effective on April 15, 2014….”
“Mrs. Salvaggio and the Board have agreed to sever the employment relationship on an amicable basis.”
There is no discussion indicated in the minutes. After the statement was read, and toward the end of the five minute meeting, Board Member Mauro read a resolution accepting the Separation Agreement, a vote was taken, and the resolution was passed.
We note that Superintendent Salvaggio signed the Separation Agreement on April 1, 2014. It is unclear when the Board met to discuss the proposed Separation Agreement.
The Open Meetings Law requires that when a quorum of members of a public body is present to discuss public business, there must be adequate notice to the public of the meeting date and time, and an opportunity for the public to witness and observe. While there is nothing in the Open Meetings Law that would preclude members of a public body from conferring individually, by telephone, via mail or e-mail, a series of communications between individual members or telephone calls among the members which results in a collective decision, or a meeting or vote held by means of a telephone conference, by mail or e-mail, in our opinion, would be inconsistent with law.
In our view, voting and action by a public body may be carried out only at a meeting during which a quorum has physically convened, or during a meeting held by videoconference. For the sake of brevity, we refer you to our analysis in the opinion at the following link: http://docs.dos.ny.gov/coog/otext/o5205.doc and confirm that in a situation where the court found that a public body took action through a series of telephone calls, the court invalidated the action taken, and required the public body to pay the petitioner’s attorney’s fees.
Further, §104 of the Open Meetings Law pertains to notice and states that:
“1. Public notice of the time and place of a meeting scheduled at least one week prior thereto shall be given to the news media and shall be conspicuously posted in one or more designated public locations at least seventy-two hours before such meeting.
2. Public notice of the time and place of every other meeting shall be given to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a reasonable time prior thereto.
3. The public notice provided for by this section shall not be construed to require publication as a legal notice.
4. If videoconferencing is used to conduct a meeting, the public notice for the meeting shall inform the public that videoconferencing will be used, identify the locations for the meeting, and state that the public has the right to attend the meeting at any of the locations.
5. When a public body has the ability to do so, notice of the time and place of a meeting given in accordance with subdivision one or two of this section, shall also be conspicuously posted on the public body’s internet website.”
Section 104 thereby imposes a three-fold requirement: one, that notice must be posted in one or more conspicuous, public locations; two, that notice must be given to the news media; and three, that notice must be conspicuously posted on the body’s website when there is an ability to do so. Although notice of the meeting was posted online Wednesday April 2nd, it was reported that late in the afternoon on April 4th the District issued a statement calling its failure to notify the press of the morning meeting an “oversight” and that it would not happen in the future.
There is nothing in the Open Meetings Law that refers specifically to “emergency” or “special” meetings. However, the judicial interpretation of the Open Meetings Law suggests that the propriety of scheduling a meeting less than a week in advance is dependent upon the actual need to do so. As stated in Previdi v. Hirsch:
“Whether abbreviated notice is 'practicable' or 'reasonable' in a given case depends on the necessity for same. Here, respondents virtually concede a lack of urgency: They deny petitioner's characterization of the session as an 'emergency' and maintain nothing of substance was transacted at the meeting except to discuss the status of litigation and to authorize, pro forma, their insurance carrier's involvement in negotiations. It is manifest then that the executive session could easily have been scheduled for another date with only minimum delay. In that event respondents could even have provided the more extensive notice required by POL §104(1). Only respondent's choice in scheduling prevented this result.
“Moreover, given the short notice provided by respondents, it should have been apparent that the posting of a single notice in the School District offices would hardly serve to apprise the public that an executive session was being called...
“In White v. Battaglia, 79 A.D. 2d 880, 881, 434 N.Y.S.ed 637, lv. to app. den. 53 N.Y.2d 603, 439 N.Y.S.2d 1027, 421 N.E.2d 854, the Court condemned an almost identical method of notice as one at bar:
“Fay Powell, then president of the board, began contacting board members at 4:00 p.m. on June 27 to ask them to attend a meeting at 7:30 that evening at the central office, which was not the usual meeting date or place. The only notice given to the public was one typewritten announcement posted on the central office bulletin board...Special Term could find on this record that appellants violated the...PublicOfficers Law...in that notice was not given 'to the extent practicable, to the news media' nor was it 'conspicuously posted in one or more designated public locations' at a reasonable time 'prior thereto' (emphasis added)” (138 Misc.2d 436, 524
NYS2d 643, 645 ).
Based upon the foregoing, absent an emergency or urgency, the Court in Previdi suggested that it would be unreasonable to conduct meetings on short notice, unless there is some necessity to do so. If there was no urgency associated with the Separation Agreement, in our view, it is questionable whether the meeting of April 4 was validly held. More importantly, even if there is an emergency that necessitates scheduling and onducting meetings quickly, the Open Meetings Law requires that notice be given. It is not difficult to accomplish compliance with §104; notice of the time and place of a meeting can be given to the news media by email, fax or phone; notice can be quickly posted in one or more conspicuous public locations; and when it is feasible for an entity to do so, notice can be posted on the entity’s website without delay.
With respect to your question regarding Assembly Bill A.8065, please note that passage of that language, and approval by the Governor would essentially codify existing case law requiring access to separation agreements, and it is limited to state agencies, not units of local government.
Finally, and in support of your efforts to make local government agencies more accountable, we support your attendance at regular meetings of the School Board. In our experience, this is the most effective way to monitor the activities of a public body and to draw attention to important issues in a community. While there may be no law requiring that elected officials answer questions, your presence at meetings, and asking questions brings public attention to issues, which can help make a community better informed.