January 19, 1996



Ms. Judith R. Freeman
5801 East Lake Road
Auburn, NY 13021

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, unless otherwise indicated.

Dear Ms. Freeman:

I have received your letter of January 11 in which you requested an advisory opinion. I note that the opinion has been prepared on an expedited basis at the request of Assemblyman Fessenden.

In your capacity as a member of the Board of Education of the Auburn Enlarged City School District, you wrote that the Board "is considering the offer of a business to purchase school district property", and that members of the community have raised questions and sought to express their views as part of the decision making process. You indicated that the Board has considered the matter only during an executive session, at which time a presentation was made by a potential purchaser and the matter was discussed by the Board. According to your letter, during the executive session, a majority of the Board decided "to decline the purchase offer", and the President of the Board expressed an intent to announce to the public that the Board "will reject the offer."

It is your view that the Open Meetings Law requires that the Board's deliberations should have been conducted in public and that the Board should have voted on the matter in public.

In good faith, I point out that the School District's Attorney, Charles Marangola, contacted me with respect to the issue. Mr. Marangola indicated that the firm seeking to purchase the property merely advanced a proposal and submitted no written purchase offer. After hearing the firm's presentation and discussing the matter, the Board, in his view, did not reject any particular offer, for none was presented to the Board in writing. Further, he contended that the consensus reached by the Board was in essence reflective of an agreement that no action should be taken. Stated differently, based upon his version of the matter, there was no offer to accept or reject by means of a vote.

In this regard, as is the case with respect to many issues arising under the Open Meetings Law, it is difficult to offer unequivocal advice without having been present. Because the description of an issue is based upon one's perception of an occurrence or series of events, frequently there are different descriptions of the same event. I am not suggesting that you, Mr. Marangola or anyone else has misrepresented the facts; I am merely suggesting that there may be differing views of the facts. Nevertheless, I offer the following comments.

First, as you are aware, the Open Meetings Law is based upon a presumption of openness. Specifically, the Law requires that meetings be conducted open the public, except to the extent that an executive session may be held in accordance with the provisions of paragraphs (a) through (h) of §105(1). The only provision that appears to have been relevant concerning the executive session at issue is §105(1)(h). That provision permits a public body to enter into executive session to discuss:

"the proposed acquisition, sale or lease of real property or the proposed acquisition of securities, or sale or exchange of securities held by such public body, but only when publicity would substantially affect the value thereof."

In my opinion, the language quoted above, like the other grounds for entry into executive session, is based on the principle that public business must be discussed in public unless public discussion would in some way be damaging, either to an individual, for example, or to a government in terms of its capacity to perform its functions appropriately and in the best interest of the public. It is clear that §105(1)(h) does not permit public bodies to conduct executive sessions to discuss all matters that may relate to the transaction of real property; only to the extent that publicity would "substantially affect the value of the property" can that provision validly be asserted.

Again, without having been present, it is difficult to advise with certainty as to the propriety of the executive session. Based upon discussions with you and Mr. Marangola, it appears that some aspects of the executive session should have been conducted in public. From my perspective, it is unlikely that the presentation made by the firm concerning its proposed use of the property would have fallen with the scope of §105(1)(h). Similarly, if the Board engaged in a general discussion of the benefits or disadvantages of selling the property, it does not appear that such a discussion could properly have occurred in private. However, insofar as the Board might have discussed possible financial terms or engaged in a negotiation process regarding the proposal, it is possible that public discussion at that juncture might have significantly affected the value of the property. To that extent, an executive session in my view could properly have been held.

With respect to voting, as you may be aware, as a general rule, a public body may take action during an executive session properly held [see Open Meetings Law, §105(1)]. If action is taken during an executive session, minutes reflective of the action, the date and the vote must be recorded in minutes pursuant to §106(2) of the Law. If no action is taken, there is no requirement that minutes of the executive session be prepared. Nevertheless, various interpretations of the Education Law, §1708(3), indicate that, except in situations in which action during a closed session is permitted or required by statute, a school board cannot take action during an executive session [see United Teachers of Northport v. Northport Union Free School District, 50 AD 2d 897 (1975); Kursch et al. v. Board of Education, Union Free School District #1, Town of North Hempstead, Nassau County, 7 AD 2d 922 (1959); Sanna v. Lindenhurst, 107 Misc. 2d 267, modified 85 AD 2d 157, aff'd 58 NY 2d 626 (1982)]. In short, based upon judicial interpretations of the Education Law, a school board generally cannot vote during an executive session, except in rare circumstances in which a statute permits or requires such a vote.

The question in this instance is whether action was taken and, therefore, whether a vote by the Board should have occurred during an open meeting. We have discussed this issue in relation to other events, and it is my belief, based upon the judicial interpretation of the Open Meetings Law, that there may be no distinction between a so-called consensus and a final action taken by a public body if the consensus is in reality a determination reflective of action upon which an entity relies. In this instance, it appears that there was a consensus on the part of the Board that the property under consideration would not be sold.

To reiterate Mr. Marangola's view, there was no official purchase offer to accept or reject, and the Board's consensus in actuality represented a meeting of the minds to the effect that no action would be taken. If that view of the facts is accurate, i.e., that the Board agreed that no action would be taken, I do not believe that there would have been any requirement that a vote be taken.

Your version of the facts, however, is somewhat different. You indicated to me by phone that a document was distributed to each Board member indicating what the firm was willing to offer for the property. Whether that record could be characterized as a purchase offer is unknown to me. Further, you said that the President of the Board requested that each member provide an affirmative or negative response concerning the proposal. Although a decision was reached, you indicated that it was not unanimous. It is your contention that the Board in fact made a decision and rejected the proposal. Again, Mr. Marangola suggested that no vote was taken; you have suggested that the President sought a response, pro or con, from each member of the Board. If indeed that response resulted in a rejection of what the Board considered to be an offer, it would appear that "action" was taken [see Previdi v. Hirsch, 524 NYS 2d 643 (1988)] and that a "vote" should have occurred in public.

Finally, as stated at the outset, the difficulty involved in offering an unequivocal response pertains to the reality that people's perceptions of the same events often differ. In an effort to be fair, in the preceding commentary, I have attempted to recognize the views offered by both yourself and the District's attorney.

I hope that I have been of assistance. If you would like to discuss the matter, please feel free to contact me.



Robert J. Freeman
Executive Director


cc: Board of Education
Charles Marangola
Hon. Daniel J. Fessenden, Member of the Assembly