March 19, 1993
Mr. Thomas H. Wickham
Town of Southold
P.O. Box 1179
Town Hall, 53095 Main Road
Southold, N.Y. 11971
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.
Dear Mr. Wickham:
I have received your letter of March 10 in which you requested an advisory opinion concerning the propriety of an executive session held recently by the Southold Town Board.
According to your letter:
"the Board went into Executive Session to discuss a proposed Inter-Municipal Agreement between Southold and two other towns. This agreement, which is at a very preliminary stage, would outline how the three towns would swap municipal solid waste for mutual advantage. A representative from one of the other towns attended and submitted a rather broad and general draft of the Inter-Municipal Agreement for discussion."
In this regard, as you are likely aware, the Open Meetings Law is based upon a presumption of openness. Stated differently, meetings of public bodies must be conducted open to the public, unless there is a basis for entry into an executive session. Further, paragraphs (a) through (h) of §105(1) of the Law specify and limit the subjects that may appropriately be considered in executive session. Based upon a review of the grounds for entry into executive session, from my perspective, none could properly have been asserted with respect to the discussion that you described.
I point out that even though the discussion might have related to negotiations, the only provision that includes that term is §105(1)(e), which permits to entry into executive session to discuss or engage in collective bargaining negotiations under the Taylor Law. That law pertains to the relationship between public employers and public employee unions and would not have been relevant to the issue under consideration.
In some instances, I believe that issues relating to negotiations other than collective bargaining negotiations may be considered in executive session. Section 105(1)(f) 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."
If, for example, in the course of negotiations involving the engagement of a contractor, a public body considers the financial or credit history of the contractor, to that extent, an executive session could properly be held. In this instance, however, that kind of consideration would not be present.
Another potentially relevant ground for executive session involving some negotiations is §105(1)(h), which authorizes executive sessions to discuss the proposed acquisition, sale or lease of real property, but only when publicity would have a "substantial effect" on the value of the property. Based upon your description of the facts, that provision not would have been applicable.
In sum, as I understand the matter, there would have been no basis for conducting an executive session.
I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.
Robert J. Freeman