October 26, 1993
Mr. Jeffrey J. Friedland
Miller, Mannix & Pratt, P.C.
Attorneys and Counselors at Law
One Broad Street Plaza
PO Box 765 Glens Falls, NY 12801
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, unless otherwise indicated.
Dear Mr. Friedland:
As you are aware, I have received your letter of September 15. You have asked that I confirm your understanding that, in appropriate circumstances, municipal attorneys and municipal boards may engage in privileged communications that are exempt from the Open Meetings Law.
In this regard, by way of background, it is noted at the outset that the Open Meetings Law provides two vehicles under which a public body may meet in private. One is the executive session, a portion of an open meeting that is closed to the public in accordance with §105 of the Law. The other arises under §108 of the Open Meetings Law, which contains three exemptions from the Law. When a discussion falls within the scope of an exemption, provisions of the Open Meetings Law do not apply.
Relevant to the matter is §108(3), which exempts from the Open Meetings Law:
"...any matter made confidential by federal or state law."
When an attorney-client relationship has been invoked, the communications made pursuant to that relationship are considered confidential under §4503 of the Civil Practice Law and Rules. Consequently, when an attorney and client establish a privileged relationship, the communications made pursuant to that relationship would in my view be confidential under state law and, therefore, exempt from the Open Meetings Law.
In terms of background, it has long been held that a municipal board may establish a privileged relationship with its attorney [People ex rel. Updyke v. Gilon, 9 NYS 243 (1989); Pennock v. Lane, 231 NYS 2d 897, 898 (1962)]. However, such a relationship is in my opinion operable only when a municipal board or official seeks the legal advice of an attorney acting in his or her capacity as an attorney, and where there is no waiver of the privilege by the client.
In a judicial determination that described the parameters of the attorney-client relationship and the conditions precedent to its initiation, it was held that:
"In general, 'the privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services (iii) assistance in some legal proceedings, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client'" [People v. Belge, 59 AD 2d 307, 399, NYS 2d 539, 540 (1977)].
Based upon the foregoing, in my view, to the extent that a discussion between a public body and its attorney involves the seeking of legal advice by the public body and the rendition of legal advice by the attorney, the communications would be privileged and, therefore, exempt from the Open Meetings Law. However, after legal advice has been given, and a public body deliberates with respect to an issue, the privilege is no longer applicable, and the deliberations must in my opinion be conducted in accordance with the Open Meetings Law. Stated differently, the deliberations must occur in public, unless there is a basis for entry into an executive session.
Lastly, during our recent conversation, you questioned the status of a site visit by public body, as in a case in which an entity tours or visits a particular location relative to zoning or land use. Although the term "meeting" has been construed expansively by the courts to encompass any gathering of a majority of a public body for the purpose of conducting public business [see Orange County Publications v. Council of the City of Newburgh, 60 AD 2d 409, aff'd 45 NY 2d 947 (1978)], in the only decision of which I am aware dealing with a site visit, the members of a public body were in a van, and it was held that "the Open Meetings Law was not violated" [City of New Rochelle v. Public Service Commission, 450 AD 2d 441 (1989)]. In that case, members of the Public Service Commission toured the proposed route of a power line in order to acquire a greater understanding of evidence previously presented. Based upon that decision, a site visit or tour by a public body, particularly on private property, would apparently not constitute a meeting. It has been advised, however, that site visits or tours be conducted solely for the purpose of observation and acquiring information, and that any discussions or deliberations regarding such observations should occur in public during meetings conducted in accordance with the Open Meetings Law.
I hope that I have been of some assistance.
Robert J. Freeman