January 30, 1995



Hon. Willard A. Genrich
Regent & Chancellor Emeritus
The Board of Regents
The University of the State of New York
4287 Main Street
Buffalo, NY 14226

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 Chancellor Emeritus Genrich:

I have received your letter of January 16, which reached this office on January 23. Your kind words are much appreciated.

According to your letter, during a recent appearance before the New York State School Boards Association, you were questioned concerning your "willingness to participate in the Executive Session for the election of a Chancellor of the Board of Regents prior to a public vote." Louis Grumet, Executive Director of the School Boards Association, apparently believes that an executive session would be "in direct opposition to the open meetings law." Nevertheless, you wrote that you recalled that I had suggested that the issue was, in your words, "a grey area" and that I did not offer a "definite opinion" during my presentation before the Board of Regents. You have sought my opinion on the matter.

In this regard, I believe that your recollection is correct. The possibility of discussing election of chancellor in an executive session was the subject of a lengthy exchange between members of the Board of Regents and myself, as well as several inquiries by the news media following the event. In short, the issue has not been the subject of any judicial decision of which I am aware, and the validity of an executive session would, from my perspective, be dependent on the specific nature of a discussion and, potentially, the construction of the Open Meetings Law by a court.

By way of background, §102(3) of the Open Meetings Law defines the phrase "executive session" to mean a portion of an open meeting during which the public may be excluded. Consequently, an executive session is not separate and distinct from an open meeting; on the contrary, an executive session is a part of an open meeting that must be convened open to the public and preceded by notice given to the news media and by means of posting in accordance with §104 of the Open Meetings Law. Further, a public body cannot enter into an executive session without accomplishing the procedure described in §105(1) of the Open Meetings Law. That provision states in relevant part 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..."

As indicated in the language quoted above, a motion to enter into an executive session must be made during an open meeting and include reference to the "general area or areas of the subject or subjects to be considered" during the executive session.

The only provision that appears to be relevant to the "election of chancellor", §105(1)(f), permits a public body to conduct an 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..."

Insofar as the Regents consider the criteria inherent in the position of chancellor or the attributes or qualifications of any person who might serve in that position, I do not believe that §105(1)(f) could be asserted. That kind of discussion would not focus on any "particular person" but rather on the functions associated with the position of chancellor and characteristics that any person who fulfills that role should or perhaps should not possess. However, if and when the discussion does pertain to a particular person, the language of §105(1)(f) may become applicable.

The first clause authorizes an executive session to consider the "medical, financial, credit or employment history of a particular person." There may be instances in which one or more of those subjects may be discussed regarding a candidate for chancellor. The physical ability of an individual to hold the position could be an issue, particularly if that person has a history of health problems. In view of the time consuming nature of the position, it is possible that a discussion might involve an individual's financial history, i.e., consideration of whether that person can afford to spend the time needed to carry out the duties of chancellor. One's employment history might also be considered in an effort to determine whether a candidate's work or professional experience renders that person suitable for the position. In short, to the extent that the Board of Regents discusses the medical, financial or employment history of a particular person, I believe that the initial clause of §105(1)(f) may clearly be invoked as a basis for conducting an executive session.

The second clause pertains to "matters leading to the appointment, employment, promotion" etc. "of a particular person". In my view, discussions concerning the choice of a chancellor would not involve a matter concerning employment or promotion. I do not believe that a regent could be characterized as an employee. Arguably, however, discussion of the issue might pertain to the "appointment...of a particular person".

Section 101 of the Education Law states in part that the Regents "shall appoint and, at pleasure, may remove, the commissioner of education.." Section 203 of the Education Law provides in relevant part that: "The elective officers of the university shall be a chancellor and a vice-chancellor who shall serve without salary, and such other officers as are deemed necessary by the regents, all of whom shall be chosen by ballot by the regents and shall hold office during their pleasure; but no election, removal or change of salary of an elective officer shall be made by less than six votes in favor."

Sections 101 and 203 were enacted together in 1947, and the reason for referring to the "appointment" of a commissioner, as opposed to the characterization of the position of chancellor as "elective" is unclear. Assuming that there was a reason and that the use of the terms is not interchangeable, an election would not be the equivalent of an appointment. Having reviewed a number of dictionary defintions of pertinent terms, while one can distinguish between appointments and elections in some contexts, there may be little difference between the two in others. I would conjecture that the appointment of commissioner involves a process of reviewing the characteristics and relative merits of a number of candidates for that position. Although the Regents choose a chancellor from among their members, the process is likely analogous, in that the members weigh the strengths, weaknesses and other factors concerning those under consideration for chancellor.

If the terms "appointment" and "election" are to be construed narrowly and literally, the discussion of individual regents under consideration for the position of chancellor would not constitute "a matter leading to the appointment...of a particular person" that could validly be considered in executive session. However, if those terms are construed in recognition of the nature of the deliberations that focus on particular individuals, a court might find that those deliberations are reflective of a matter leading to the appointment of a particular person that could justifiably be discussed behind closed doors.

From my perspective, the application of the second clause of §105(1)(f) to the issue indeed falls within a "grey area" of the Open Meetings Law. Due to the absence of unequivocal judicial direction, I cannot offer specific guidance concerning its scope.

In sum, first, I believe that discussions involving the position of chancellor, the procedure relating to the means by which a new chancellor will be selected, and the attributes of any person who might hold that position must be discussed in public, for none of the grounds for entry into executive session could be asserted; second, that §105(1)(f) of the Open Meetings Law would clearly justify the holding of an executive session insofar as a discussion pertains to "the medical, financial, credit or employment history" of a particular Regent under consideration for election as Chancellor; and third, that the extent to which discussion of the relative merits of specific candidates for the position constitutes "a matter leading to the appointment...of a particular person" is an issue requiring judicial interpretation in order to provide clear direction.

It is emphasized that the intent of this opinion is not to encourage litigation. On the contrary, attempts are made as a matter of routine to offer specific advice in efforts to avoid litigation. Nevertheless, for reasons described in the preceding commentary, I do not believe that I could, in good faith, advise as to any specific course of action other than to confirm that an element of the issue remains "grey" and unresolved.

I appreciate your interest in compliance with the Open Meetings Law and regret that I cannot be of greater assistance.



Robert J. Freeman
Executive Director


cc: Chancellor Carballada
Commissioner Sobol