September 29, 2008
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 information presented in your correspondence.
I have received your correspondence and apologize for the delay in response. The matter involves the ability of the Madison Town Board to meet and vote during a closed session in an effort to “get [you] out of office”, the office being that of Town Justice.
In this regard, a public body, such as a town board, is authorized to conduct closed or “executive” sessions for purposes specified in paragraphs (a) through (h) of §105(1) of the Open Meetings Law. Pertinent in the context of the matters that you described is paragraph (f), which permits a public body to enter into 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...”
If the matter discussed by the Board involved the “removal” of a particular person, such as yourself, I believe that the Board could validly have conducted an executive session.
When a public body conducts an executive session and merely discusses a matter or matters and takes no action or vote, there is no obligation to prepare minutes of the executive session. However, a public body may take action during a proper executive session, unless its action is to appropriate public money. If action is indeed taken, minutes must be prepared in accordance with subdivision (2) of §106 of the Open Meetings Law, which states that:
“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.”
Further, subdivision (3) requires that minutes of executive session “shall be available to the public within one week from the date of the executive session.”
Lastly, although the time for initiating litigation against a public body is generally four months from its action in accordance with Article 78 of the Civil Practice Law and Rules, §107(3) of the Open Meetings Law states that “The statute of limitations in an article seventy-eight proceeding with respect to an action take at executive session shall commence to run from the date the minutes of such executive session have been made available to the public.”
I hope that I have been of assistance.
cc: Town Board