January 22, 1998



Mr. John L. Perez
1 Arbor Avenue
Mechanicville, NY 12118

Mr. James L. Capasso, Mayor
Village of Ballston Spa
66 Front Street
Ballston Spa, NY 12020

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. Perez and Mayor Capasso:

I have received your letters, respectively dated May 25 and May 27, as well as various related materials supplied by the Mayor.

The issue, according to Mr. Perez, is whether the Board of Trustees of the Village of Ballston Spa "can prevent a person from addressing the Board during a regular board meeting." He wrote that he is one of three former Village police officers attempting to resolve an issue with the Board, and he referred to a statement that those former officers might sue the Village. Mr. Perez indicated that he and the other former officers were told by the Mayor at a recent meeting that they "are not allowed to address the board anymore because of pending litigation."

The Mayor, on the other hand, informed me both orally and in writing that Mr. Perez and the other former officers have raised the issue repeatedly at meetings and that they "have been given the opportunity to express their opinions in open sessions in front of the press."

In this regard, I offer the following comments.

First, although the Open Meetings Law clearly provides the public with the right "to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy" (see Open Meetings Law, §100), the Law is silent with respect to the issue of public participation. Consequently, if a public body does not want to answer questions or permit the public to speak or otherwise participate at its meetings, I do not believe that it would be obliged to do so. Nevertheless, a public body may choose to answer questions and permit public participation, and many do so, including the Village of Ballston Spa Board of Trustees. When a public body does permit the public to speak, I believe that it should do so based upon rules that treat members of the public equally.

While public bodies have the right to adopt rules to govern their own proceedings [see e.g., Village Law, §4-412(2)], the courts have found in a variety of contexts that such rules must be reasonable. For example, although a board of education may "adopt by laws and rules for its government and operations", in a case in which a board's rules prohibited the use of tape recorders at its meetings, the Appellate Division found that the rule was unreasonable, stating that the authority to adopt rules "is not unbridled" and that "unreasonable rules will not be sanctioned" [see Mitchell v. Garden City Union Free School District, 113 AD 2d 924, 925 (1985)]. Similarly, if by rule, a public body chose to permit certain citizens to address it for ten minutes while permitting others to address it for three, or not at all, such a rule, in my view, would be unreasonable.

In this circumstance, if it clear that commentary is or would be repetitive of comments made at prior meetings, I believe that a public body could reasonably preclude individuals form reiterating comments previously made. However, if individuals who have spoken in the past wish to provide new or different information or commentary, and if a public body permits others to do the same, those individuals in my opinion should be permitted to do so.

Lastly, if the sole basis for prohibiting public comment involves the possibility that the commentary may relate to eventual litigation, that alone would not in my opinion serve as a valid basis for prohibiting a member of the public from speaking.

The provision in the Open Meetings Law that deals with litigation is §105(1)(d), which permits a public body to enter into an executive session to discuss "proposed, pending or current litigation". In construing the language quoted above, it has been held that:

"The purpose of paragraph d is "to enable is to enable a public body to discuss pending litigation privately, without baring its strategy to its adversary through mandatory public meetings' (Matter of Concerned Citizens to Review Jefferson Val. Mall v. Town Bd. Of Town of Yorktown, 83 AD 2d 612, 613, 441 NYS 2d 292). The belief of the town's attorney that a decision adverse to petitioner 'would almost certainly lead to litigation' does not justify the conducting of this public business in an executive session. To accept this argument would be to accept the view that any public body could bar the public from its meetings simply be expressing the fear that litigation may result from actions taken therein. Such a view would be contrary to both the letter and the spirit of the exception" [Weatherwax v. Town of Stony Point, 97 AD 2d 840, 841 (1983)].

Based upon the foregoing, I believe that the exception is intended to permit a public body to discuss its litigation strategy behind closed doors, rather than issues that might eventually result in litigation. Since possible litigation could be the subject or result of nearly any topic discussed by a public body, an executive session could not in my view be held to discuss an issue merely because there is a possibility of litigation.

Similarly, if the public is generally permitted to speak at meetings. I do not believe that public body could validly prohibit a person from speaking because of the possibility that he or she might at some point initiate litigation. That person's comments would divulge nothing concerning a public body's strategy in potential or eventual litigation.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director