October 20, 1993
Richard P. Beruk
Superintendent of Schools
Liberty Central School District
115 Buckley Street
Liberty, NY 12754
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. Beruk:
I have received your letter of September 1. Please accept my apologies for the delay in response.
You referred to two aspects of an advisory opinion prepared on August 6 at the request of Ms. Cathy Lombardi.
The first pertains to the ability of the Board of Education to conduct an executive session "relative to its reorganization of its officers." Insofar as you are referring to the election of officers, i.e., as president or vice president of the Board, it is my view that considerations regarding the election of officers rarely fall within the grounds for entry into executive session. As indicated in the August opinion, the only provision that might possibly be invoked, §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 or corporation..."
Except in the rare instance in which a person's medical condition or history may be at issue, I do not believe that an election would involve any of the subjects appearing in the provision quoted above. However, insofar as a reorganization includes the designation of Board members to certain committees or involves the designation of others to carry out certain functions, i.e., the designation of an individual as records access officer for the purpose of responding to requests made under the Freedom of Information Law, I would agree that those considerations might involve one's employment history or a matter leading to the appointment of a particular person or persons that could properly be discussed in executive session under §105(1)(f).
The other issue involves "the matter of announcing, when necessary, an executive session in advance and placing it on the agenda", and you referred to several valid reasons for seeking to "pre-schedule" executive sessions. In this regard, for reasons expressed in the earlier opinion, a public body cannot in my view schedule an executive session in advance of a meeting. In short, because a vote to enter into an executive session must be made and carried by a majority vote of the total membership during an open meeting, technically, it cannot be known in advance of that vote that the motion will indeed be approved. However, I would like to suggest an alternative method of achieving the desired result that would comply with the letter of the law. Rather than scheduling an executive session, you or the Board on its agenda could refer to or schedule a motion to enter into executive session to discuss certain subjects. Reference to a motion to conduct an executive session would not represent an assurance that an executive session would ensue, but rather that there is an intent to enter into an executive session by means of a vote to be taken during a meeting.
I hope that I have been of some assistance. If you would like to discuss the matter, please feel free to contact me.
Robert J. Freeman