April 6, 1998

Dr. Peter C. Paciolla
Superintendent of Schools
Mount Sinai Union Free School District
North Country Road
Mount Sinai, NY 11766

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.

Dear Dr. Paciolla:

I have received your communication in which you sought clarification
relating to comments attributed to me by a member of the Mount Sinai Union
Free School District Board of Education.

In a memorandum sent to you by Board member Linda Towler, she
wrote that I "told" her that "the superintendent's contract can be discussed in
public because it is a public document." While I do not recall the specifics of
our conversation of March 31, I do not believe that I would have so stated.

It is clear that a superintendent's contract, like any other contract
between a school district and an individual, a firm or an employee
organization, is accessible to the public under the Freedom of Information
Law. However, it does not follow that a discussion relating to record
accessible to the public must, of necessity, be conducted in public or that there
may no basis for entry into executive session. I note that the grounds for
withholding records under §87(2) of the Freedom of Information Law and the
grounds for entry into executive session are not consistent in every instance;
in some situations, a record may be withheld, but a discussion of the record
must be conducted in public and vice versa. For instance, if you, in your
capacity as Superintendent, prepare a memorandum in which you recommend
a change in policy, that record could be withheld as "intra-agency material"
under §87(2)(g) of the Freedom of Information Law. Nevertheless, when the
Board discusses a change in policy at a meeting, there would likely be no basis
for entry into executive session.

In the context of the matter at hand, again, I believe that a
superintendent's employment contract is accessible to the public. However,
a discussion pertaining to that person in relation to the contract might
justifiably be considered in executive session under §105(1)(f) of the Open
Meetings Law. That provision 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..."

In short, even though the contract is public, a discussion of one's employment
history, for example, could clearly be conducted during an executive session.

Lastly, although a matter may be discussed in executive session, there
is no requirement that it must be discussed in executive session. In this
regard, both the Open Meetings Law and the Freedom of Information Law are
permissive. While the Open Meetings Law authorizes public bodies to
conduct executive sessions in circumstances described in paragraphs (a)
through (h) of §105(1), there is no requirement that an executive session be
held even though a public body has right to do so. The introductory language
of §105(1), which prescribes a procedure that must be accomplished before
an executive session may be held, indicates that a public body "may" conduct
an executive session only after having completed that procedure. If, for
example, a motion is made to conduct an executive session for a valid reason,
and the motion is not carried, the public body could either discuss the issue in
public, or table the matter for discussion in the future. Similarly, although the
Freedom of Information Law permits an agency to withhold records in
accordance with the grounds for denial, it has been held by the Court of
Appeals that the exceptions are permissive rather than mandatory, and that an
agency may choose to disclose records even though the authority to withhold
exists [Capital Newspapers v. Burns], 67 NY 2d 562, 567 (1986)].

I hope that the foregoing serves to clarify the matter and that I have
been of assistance. If you would like to discuss the matter further, please feel
free to contact me.


Robert J. Freeman
Executive Director