February 12, 2007
FROM: Robert J. Freeman, Executive 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.
As you are aware, I have received your memorandum and related material that you sent in your capacity as a member of the Board of Education of the Moravia Central School District. The matter concerns the propriety of entry into executive session to discuss a “Board Self Evaluation”, and the District’s attorney referred to two opinions rendered by this office and concluded that the self evaluation would not be subject to the Open Meetings Law. In addition, you wrote most recently about a “team review” that involves an evaluation of the performance of the Superintendent. It is your understanding that the review, based on the original evaluation document, would pertain only to the Board, and you expressed the opinion that if the review includes evaluation of the performance of the Superintendent, it should be “split into two forms”, one pertaining to the Board and the other to the Superintendent.
Having reviewed the opinions rendered by this office that were cited by the attorney, as well as the original “team review” document, I believe that the difficulty is that the issues described in the document in some instances clearly involve the official duties of the Board and District business, while others appear to involve individuals’ behavior and interpersonal relationships and communication. In this regard, I offer the following comments.
Both of the opinions dealt essentially with the same issue, and that issue is the focus of the matter that you have raised. One of the opinions (OML-AO 2294) referred to a board of education conducting a “self-assessment”, and it was advised that “if ‘self-assessment sessions are held to discuss interpersonal relations and similar matters, and if the business of the Board is not intended to arise and does not arise, I do not believe that those kinds of gatherings would be subject to the Open Meetings Law.’” The other pertained to a gathering of the governing body of a state agency (OML-AO-2733), and I was informed that the “session is not intended to deal in any way with the business of the Agency, but rather to build upon our team building and communication skills.” Further, the facilitator for the session provided assurances that “his program...would in no way be inclusive of any Agency matters.”
The information offered in relation to those opinions was critical, for the primary issue involves whether or the extent to which the gathering as described in the evaluation document constitutes a “meeting” that falls within the coverage of the Open Meetings Law. As indicated in the opinions, §102(1) of that statute defines the term "meeting" to mean "the official convening of a public body for the purpose of conducting public business". It is emphasized that the definition of "meeting" has been broadly interpreted by the courts. In a landmark decision rendered in 1978, the Court of Appeals, the state's highest court, found that any gathering of a quorum of a public body, such as a board of education, for the purpose of conducting public business is a "meeting" that must be convened open to the public, whether or not there is an intent to take action and regardless of the manner in which a gathering may be characterized [see Orange County Publications v. Council of the City of Newburgh, 60 AD 2d 409, aff'd 45 NY 2d 947 (1978)].
Inherent in the definition and its judicial interpretation is the notion of intent. If there is an intent that a majority of a public body convene for the purpose of conducting public business, such a gathering would, in my opinion, constitute a meeting subject to the requirements of the Open Meetings Law. However, if there is no intent that a majority of public body will gather for purpose of conducting public business, collectively, as a body, but rather for the purpose of developing or improving communication skills, for example, I do not believe that the Open Meetings Law would be applicable.
Based on a review of the eleven items appearing in the evaluation document, it appears that all but two involve matters of District business that would fall within the scope of Board members’ duties or authority. The two that may not, items 1 and 2, deal respectively with “Communication” (“listen and speak honestly; considerate of others”) and “Trust” (willing to share concerns with the total group without fear; do not take disagreement personally”). The others, as I interpret them, all deal with the governmental functions of Board members and/or the Board as a whole.
From my perspective, assuming that the items of discussion are or can be segregable, the first two do not involve the governmental functions of the Board or its members and, therefore, could be discussed or carried out in private, for consideration of those items would not reflect a gathering of the Board for the purpose of conducting public business. In short, a session consisting of consideration of those two items, in my view, would not constitute a “meeting.” The remainder, however, appears to involve consideration of matters that relate to the scope of the Board’s duties. A session to consider those issues would, in my opinion, clearly constitute a “meeting” that must be held in accordance with the Open Meetings Law.
Lastly, if the Board evaluates the performance of the Superintendent, I believe that it could do so during an executive session. If, however, the Board discusses goals or functions of any person who might serve in the position of superintendent, I do not believe that there would be a basis for entry into executive session.
As you are likely aware, the Open Meetings Law is based on a presumption of openness and requires that a procedure be accomplished, during an open meeting, before a public body may enter into an executive session. Specifically, §105(1) states in relevant part that:
"Upon a majority vote of its total membership, taken in an open meeting pursuant to a motion identifying the general area or areas of the subject or subjects to be considered, a public body may conduct an executive session for the below enumerated purposes only..."
As such, a motion to conduct an executive session must include reference to the subject or subjects to be discussed, and the motion must be carried by majority vote of a public body's membership before such a session may validly be held. The ensuing provisions of §105(1) specify and limit the subjects that may appropriately be considered during an executive session. Therefore, a public body may not conduct an executive session to discuss the subject of its choice.
Perhaps the most frequently cited ground for entry into executive session is the so-called "personnel" exception. Although it is used often, the word "personnel" appears nowhere in the Open Meetings Law. While one of the grounds for entry into executive session relates to personnel matters, the language of that provision is precise. Section105(1)(f) states that a public body may 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 inclusion of the term "particular" in §105(1)(f), I believe that a discussion under that provision may be considered in an executive session only when the subject involves a particular person or persons, and only when one of the topics listed in §105(1)(f) is considered.
Insofar as a discussion by the Board focuses on the Superintendent and his performance, I believe that an executive session could justifiably be held. However, if a discussion involves issues that would be applicable to any person who might serve in that position, i.e., consideration of the goals or duties inherent in the position, irrespective of the identity of the incumbent of that position, the matter would not relate to a “particular person”, but rather to the position, and, in my view, there would be no basis for conducting an executive session.
In an effort to enhance understanding of and compliance with the Open Meetings Law, a copy of this opinion will be sent to the Board.
I hope that I have been of assistance.
cc: Board of Education