February 24, 2015
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, unless otherwise indicated.
I have received your letter in which you sought an opinion concerning application of the Open Meetings Law to a gathering of the Board of Education of the Plainedge Union Free School District.
That gathering was the subject of an opinion previously rendered by Camille Jobin-Davis, the Committee’s Assistant Director, at the request of a person who will be characterized for purposes of this response as “the resident.” That opinion has been cited by the resident as “proof that the School Board violated the Open Meetings Law.” You disagree with the resident’s characterization and expressed the belief that Ms. Jobin-Davis was not presented with “all of the relevant facts…”
You described the situation to me both before and after the preparation of the opinion, and I must admit that I did not know that the opinion prepared at the request of the resident had been a topic of discussion with you. You wrote that the facts are as follows:
“While in executive session, the Superintendent of Schools imparted legal advice from School District counsel regarding whether the Board was legally required to respond to a request it received from [the resident]. Thereupon, the Superintendent asked the Board members whether they wished to respond to the letter. The majority of the present Board members did not authorize a response to the letter.”
The resident then submitted several requests pursuant to the Freedom of Information Law seeking minutes of the executive session “at which the board made the decision not to respond to [her] letter.” The District responded that are no such records and that the portion of the executive session in which legal advice was shared with the Board was exempt from the Open Meetings Law.”
You have asked that I provide an opinion confirming the advice originally offered to you suggesting that the gathering was exempt from the Open Meetings Law, as well as the advice later offered indicating that the Board’s “failure to authorize a response to the letter is not considered a formal vote taken in executive session nor is it required to be recorded in minutes.”
In this regard, I offer the following comments as a means of providing an opinion and clarification of the application of the Open Meetings Law.
First, when an opinion is offered by this office, whether verbally or in writing, it should not be considered as “proof” of either compliance or failure to comply. This office is not a court, and our opinions are just that – opinions. In a related vein, if an individual states that an opinion rendered by this office includes a conclusion that an entity “violated” the Open Meetings Law or the Freedom of Information Law, he or she would have misrepresented our opinion. In short, because the Committee on Open Government is not a court, and because neither Ms. Jobin-Davis nor myself is a judge, we never state that a person or entity violated the law; only a court may do so.
Second, the Open Meetings Law includes two vehicles that may apply as means of excluding the public from a meeting. One is an executive session, which is defined to mean a portion of an open meeting during which the public may be excluded. As you know, before an executive session may be held, a motion to do so must be made in public, indicating the reason and carried by a majority vote of a board’s total membership. The other vehicle involves “exemptions”. Section 108 includes three exemptions, and when an exemption applies, the Open Meetings Law does not; it is as though the Open Meetings Law does not exist.
One of the exemptions, section 108(3), pertains to “matters made confidential by federal or state law.” Judicial decisions have for decades indicated that legal advice given to a government board by its attorney is subject to the attorney-client privilege and is, therefore, confidential. Therefore, when a school district attorney offers legal advice to his or her client, such as a board of education, and the advice is given to or shared with the board during a gathering of the board, the attorney-client privilege applies, and the Open Meetings Law does not. A communication of that nature would, in our view, be exempt from the coverage of the Open Meetings Law. In a technical sense, a matter of that sort would not be an executive session, but rather a matter falling outside the scope of the Open Meetings Law.
Lastly, the remaining question could be debated forever. Is a decision not to decide itself a decision? In our view, when a “decision” involves a matter on which a public body relies as a means of going forward, it is action taken that should in most circumstances be memorialized in minutes. However, when there is a consensus that a public body will not take action, in my opinion, that is not an action that must be recorded in minutes. In the context of the issue that you described, the Board’s failure to authorize a response to the resident’s letter, i.e., a response that there will be no response, is not, in my view, an action or a vote that warrants a motion or reference in minutes.
I hope that I have been of assistance.
Robert J. Freeman