April 29, 1993
Mr. Dennis G. Katz
Attorney at Law
114 North Main Street
Spring Valley, N.Y. 10977
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. Katz:
I have received your letter of April 16 in which you raised questions concerning the Open Meetings Law.
By way of background, you wrote that you represent individuals "affiliated with a Religious Corporation which entered into a contract to purchase an unused school building from the East Ramapo Central School District." You indicated that:
"The difficulty is that the East Ramapo School Board approved the resolution to sell the property after meeting in closed session during the course of a public meeting held on 10/28/92. What happened was that the School Board opened the public meeting and then decided to meet in closed session to discuss the proposal being made by the Religious Corporation. No reason was given as to why the discussion could not take place in public.
"Thereafter, the Religious Corporation sought an adjournment of the closing of title and, once again, the School Board met in closed session on 1/27/93 to discuss the matter. Eventually, the extension of the closing date was granted."
Your clients have questioned whether the procedure described above were consistent with applicable law. In this regard, I offer the following comments.
First, as a general matter, the Open Meetings Law is based on a presumption of openness. Meetings of public bodies must be conducted open to the public, except to the extent that the subject matter may properly be considered during executive sessions. Moreover, the Open Meetings Law 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 be made in public and include reference to the subject or subjects to be discussed and the motion must be carried by majority vote of a public body's total 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.
Second, there appears to have been one ground for entry into executive session relevant to the situation. Specifically, §105(1)(h) permits a public body to enter into an executive session to discuss:
"the proposed acquisition, sale or lease of real property or the proposed acquisition of securities, or sale or exchange of securities held by such public body, but only when publicity would substantially affect the value thereof."
Based on the foregoing, a public body may discuss the proposed sale of real property, for example, behind closed doors, "but only when publicity would substantially affect the value" of the property. Conversely, when publicity would not have any substantial effect upon the value of real property, §105(1)(h) could not in my opinion be properly asserted to enter into an executive session. I am unaware of whether publicity would have had any impact on the value of the property in question.
Lastly, I point out that, as a general rule, a public body may take action during an executive session properly held [see Open Meetings Law, §105(1)]. If action is taken during an executive session, minutes reflective of the action, the date and the vote must be recorded in minutes pursuant to §106(2) of the Law. If no action is taken, there is no requirement that minutes of the executive session be prepared. Nevertheless, various interpretations of the Education Law, §1708(3), indicate that, except in situations in which action during a closed session is permitted or required by statute, a school board cannot take action during an executive session [see United Teachers of Northport v. Northport Union Free School District, 50 AD 2d 897 (1975); Kursch et al. v. Board of Education, Union Free School District #1, Town of North Hempstead, Nassau County, 7 AD 2d 922 (1959); Sanna v. Lindenhurst, 107 Misc. 2d 267, modified 85 AD 2d 157, aff'd 58 NY 2d 626 (1982)]. Stated differently, based upon judicial interpretations of the Education Law, a school board generally cannot vote during an executive session, except in rare circumstances in which a statute permits or requires such a vote.
I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.
Robert J. Freeman
cc: Board of Education