May 14, 1993
Ms. Shirley A. Coons
2215 Bennett Road
Bloomfield, N.Y. 14469
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 Ms. Coons:
I have received your letter of April 20, which for reasons unknown did not reach this office until May 5. You have complained regarding the implementation of the Open Meetings Law by the Town Board of the Town of East Bloomfield, particularly with respect to minutes of executive sessions.
By way of background, you wrote that on January 15, you submitted a resignation from your position as justice court clerk to be effective on January 31. When questioned by the Supervisor as to the reason, you indicated that matter involved a salary increase, and you told him that you would remain on the job only if you were paid at an increased rate. The Supervisor said that the Town Board would have to authorize an increase, and he asked that you attend the next meeting. At the meeting, which was held on February 8, the Board went into an executive session, at which time you expressed your reasons for seeking an increase "and the Board agreed that they had no problem with the increase" and "voted in the Board's action, in a memorandum addressed to the Board and the Supervisor, you wrote that you had been paid at the old rate and, therefore, resubmitted your resignation. Soon thereafter, you were informed by the Town Clerk in writing that the Board had excepted your resignation at a meeting.
Despite the actions taken by the Board, you indicated that there are no minutes concerning your resignation or the Board's vote to increase your rate of pay. Further, in a letter sent to you by the Supervisor, he stated that "[s]ince the discussions around this issue were conducted with you in a closed Executive Session of the Town Board meeting, no written minutes are available."
From my perspective, based on the clear direction provided by the Open Meetings Law, although issues involving your resignation could properly have been discussed in executive session, I believe that minutes reflective of action taken should have been prepared.
In this regard, §106 of the Open Meetings Law pertains to minutes, and subdivision (2) of that provision deals with minutes of executive sessions and 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.
In addition, subdivision (3) of §106 provides that:
"Minutes of meetings of all public bodies shall be available to the public in accordance with the provisions of the freedom of information law within two weeks from the date of such meetings except that minutes taken pursuant to subdivision two hereof shall be available to the public within one week from the date of the executive session."
Based on the foregoing, when a public body takes action during an executive session, minutes indicating that nature of the action taken, the date, and the vote of each member must be prepared within one week and made available to the extent required by the Freedom of Information Law. Determinations to increase your salary and accept your resignation would clearly be available under the Freedom of Information Law.
Based upon the facts that you provided, the vote taken by the Board on February 8 to increase your rate of pay should have been recorded in the form of minutes. Similarly, any action by the Board to accept your resignation should in my view be memorialized in minutes. In both of those instances, I believe that minutes should have been prepared and made available within one week.
In an effort to enhance compliance with and understanding of the Open Meetings Law, copies of this opinion will be forwarded to Town officials. I hope that I have been of some assistance.
Robert J. Freeman
cc: Town Board
Patrick Crowley, Supervisor
Diana J. Wade, Clerk