July 14, 2003
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence, unless otherwise indicated.
I have received your letter and the materials attached to it. You have requested an advisory opinion in your capacity as President of the Mendon Public Library Board of Trustees concerning the propriety of an executive session held by the Mendon Town Board to discuss a site for your new public library.
As I understand the matter, the Board of Trustees met last September and informed the Town Supervisor of its recommendation to include the library as part of the Village Square development on Main Street. In March of this year, a presentation was made concerning that proposal at a joint meeting of the Town Board and the Board of Trustees. At a special meeting of the Town Board held on May 28, an executive session was held "for the purpose of discussing land acquisition", and immediately thereafter, a motion was made and approved stating that:
"WHEREAS, the Mendon Library Board of Trustees conducted a search for potential sites for a new or expanded library building and performed an extensive evaluation of several potential sites, and
"WHEREAS, this Town Board has studied the evaluation performed
by the Library Board of Trustees and has supplemented the data
presented by the Board of Trustees with additional information,
engineering and architectural data and financial and tax-rate
"WHEREAS, this Town Board has utilized all of the available information, as well as the Board members' overall knowledge of the Town and the collective sense of the future direction of the Town.
NOW, THEREFORE, BE IT RESOLVED, that this Town Board
determines that the most appropriate site for a new library building is
the parcel of land directly north of the current library building
because it is already owned by the Town, and in the same village-
center location as the current building."
You indicated to me by phone that the executive session, upon information and belief, was held solely for the purpose of discussing the site of the new library. If that is so, I believe that the executive session was improperly held. In this regard, I offer the following comments.
As you are likely aware, the Open Meetings Law is based on a presumption of openness. Stated differently, meetings of public bodies must be conducted open to the public, except to the extent that an executive session may properly be conducted in accordance with paragraphs (a) through (h) of §105(1). Consequently, a public body, such as a town board, cannot enter into an executive session to discuss the subject of its choice. From my perspective, the grounds for entry into executive session are based on the need to avoid some sort of harm that would arise by means of public discussion, and that is so with respect to the only ground for entry into executive session that appears to be relevant in relation to the matter that you described.
Specifically, §105(1)(h) of the Open Meetings Law permits a public body to enter into
executive session to discuss:
"the proposed acquisition, sale or lease of real property or the proposed acquisition of securities, or sale or exchange of securities held by such public body, but only when publicity would substantially affect the value thereof."
In my opinion, the language quoted above, like the other grounds for entry into executive session, is based on the principle that public business must be discussed in public unless public discussion would in some way be damaging, either to an individual, for example, or to a government in terms of its capacity to perform its functions appropriately and in the best interest of the public. It is clear that §105(1)(h) does not permit public bodies to conduct executive sessions to discuss all matters that may relate to the transaction of real property; only to the extent that publicity would "substantially affect the value of the property" can that provision validly be asserted.
A key question, in my view, involves the extent to which information relating to possible real property transactions has become known to the public. The more that is known, the less likely it is that publicity would have an impact on the value of a parcel or in some way damage the interests of taxpayers. I note that the language of §105(1)(h) does not refer to negotiations per se or the impact of publicity upon negotiations relating to a parcel; rather its proper assertion is limited to situations in which publicity would have a substantial effect on the value of the property. It has been advised, for example, that when a municipality is seeking to purchase a parcel and the public is unaware of the location or locations under consideration, it is possible if not likely that premature disclosure or publicity would indeed substantially affect the value of the property. In that kind of situation, publicity might result in speculation or offers from others, thereby precluding the municipality from reaching an optimal price on behalf of the taxpayers. However, when details concerning a potential real property transaction, such as the location and potential uses of the property, are known to the public, publicity would have a lesser effect or impact on the value of the parcel. Again, the more that is known to the public, the less likely it is that publicity would affect the value of a parcel.
In this instance, the site suggested by the Board of Trustees became well known to the public some time ago, and the site chosen by the Town Board is owned by the Town. In consideration of those factors and the language of the Open Meetings Law, it does not appear that publicity would have had any impact, let alone a "substantial" impact, on the value of either Village Square or the parcel owned by the Town. If that is so, I do not believe that there would have been any basis for entry into executive session by the Town Board to discuss the issue of your interest.
I hope that I have been of assistance.
Robert J. Freeman
cc: Town Board