October 21, 1994
Mr. Richard E. Scudellari
Tax Pac, Inc.
P.O. Box 188
Greenlawn, NY 11740-0188
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.
Dear Mr. Scudellari:
I have received your letter of September 27 and the materials attached to it.
The documentation relates to action taken in response to a opinion that I prepared on your behalf in which it was advised that, in a technical sense, a public body cannot schedule an executive session in advance of a meeting. It was also advised that a public body may include in or with the notice of a meeting an indication that a motion would be made to enter into executive session to discuss a particular topic immediately after the convening of an open meeting. Following the issuance of the opinion, Dr. Raymond A. Walters, Superintendent of Schools, wrote that the Board had altered its policy to include statements in its notices indicating that a Board meeting will begin at a certain time and that a motion to conduct an executive session will be made immediately thereafter. He also wrote that the Board calls its meetings to order in public and that motions are then accepted to move into executive sessions. In conjunction with the foregoing, you enclosed a copy of the District's 1994-95 calendar and directory and circled a number of references to scheduled meetings of the Board of Education. Typical among those notices is the following: "Board of Education Regular Meeting 7:30 PM Public Meeting 8:15 PM."
You have asked that I review that documentation "and state, yes, they are in violation of such and such a law or no they are not violating any laws, statutes or regulations."
In this regard, it is emphasized at the outset that neither the Committee on Open Government nor myself is empowered to find an entity "in violation" of law. From my perspective, only a court can render such a determination. The Committee and its staff are, however, authorized to provide advice and opinions, and the ensuing remarks should be considered in that light.
As you are aware, the Open Meetings Law requires that a procedure be accomplished during an open meeting before a public body may enter into an executive session. Section 105(1) of the Law states 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..."
From my perspective, the purpose and intent of the foregoing are clear: the public should have the right to know when a public body enters into an executive session, and that there is a proper basis for so doing. Consequently, a motion to conduct an executive session must be made in public and it must include reference to the subject or subjects to be considered behind closed doors.
Often public bodies or their staffs have the capacity to recognize in advance of a meeting that a topic to be considered at a meeting falls within one or more of the grounds for entry into executive session. In those kinds of situations, in consideration for the public, some have sought to schedule executive sessions so that members of the public will know in advance that they need not attend while an executive session is ongoing. As expressed in the earlier opinion addressed to you, technically, I do not believe that a public body can know with certainty that an executive session will be held. In short, it cannot be known with certainty that a motion to enter into an executive session will indeed be carried. For those reasons, I advised as I did, that a public body cannot schedule an executive session but may in its notice indicate that a motion to enter into executive session may be made to discuss a certain topic. When it is known that a certain topic will in fact be considered and that there is a basis for discussing that topic in executive session, the practice that I recommended and which was described to you by Dr. Walters in his letter of July 12 would be unobjectionable and in my view consistent with the Open Meetings Law.
However, the calendar tacitly includes scheduled executive sessions, without any indication of the subject to be considered, with respect to meetings to be held as far in advance as August of 1995. I doubt that a public body can know in October of 1994 that there will indeed by a basis for conducting an executive session in August of 1995. In my opinion, Dr. Walters' written statement regarding the implementation of the Open Meetings Law is consistent with law. However, if in practice the Board schedules closed sessions far in advance of meetings, without consideration as to the topics that may be discussed, that practice would in my opinion be inconsistent with the Open Meetings Law, particularly in terms of its purpose and intent.
I hope that I have been of some assistance.
Robert J. Freeman
cc: Dr. Raymond A. Walters
Board of Education