June 9, 1995
Hon. Larry G. Mack
Cattaraugus County Legislature
4911 Humphrey Road
Great Valley, NY 14741
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 Legislator Mack:
I have received your letter of May 18. In your capacity as a member of the Cattaraugus County Legislature, you have requested an advisory opinion concerning your exclusion from an executive session held by the Public Works Committee of the Legislature, as well as the propriety of the executive session.
In this regard, I offer the following comments.
First, the Open Meetings Law applies to meetings of public bodies, and §102(2) of that statute defines the phrase "public body" to mean:
"...any entity for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof, or for a public corporation as defined in section sixty-six of the general construction law, or committee or subcommittee or other similar body of such public body."
Based on the foregoing, the County Legislature is clearly a public body. When the Legislature creates or designates committees or subcommittees consisting of members of the Legislature, those committees and subcommittees are, based on the last clause of §102(2), public bodies separate and distinct from the County Legislature for purposes of the Open Meetings Law.
With respect to your exclusion from the executive session, I direct your attention to §105(2) of the Open Meetings Law. That provision states that: "Attendance at an executive session shall be permitted to any member of the public body and any other persons authorized by the public body." As such, only the members of a public body have the right to attend an executive session of that body. In the context of your question, unless authorized to attend by the Public Works Committee, I do not believe that members of the County Legislature who are not members of that Committee would have the right to attend an executive session of the Committee. Therefore, assuming that there was a proper basis for conducting an executive session, it appears that the Committee could justifiably have excluded you from its executive session.
As suggested in previous correspondence, if you believe that every County Legislator should have the right to attend every executive session of every committee, even though a member of the Legislature is not a member of a committee, you could recommend the adoption of a rule to that effect in accordance with §153(8) of the County Law.
Second, as I understand the matter, the executive session was held to discuss the selection of a consultant. If that is so, it appears that there may have been a basis for conducting an executive session. Section 105(1)(f) of the Open Meetings Law 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..."
Therefore, insofar as the Committee considered the employment history of a particular consultant or consulting firm, for example, or discussed a matter leading to the appointment or employment of a particular consultant or consulting firm, I believe that it would have validly held an executive session.
I hope that I have been of some assistance.
Robert J. Freeman