February 6, 1996



Mr. Daniel R. Sanders
2128 Sterling Station Road
Sterling, NY 13156

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. Sanders:

I have received your letter of January 19. You described a situation in which the Sterling Town Board entered into executive session to discuss the selection of a person to fill the unexpired term of the town clerk, even though you read aloud a passage from a decision in which it was held that such a subject must be discussed in public.

You have asked that this office investigate the incident, and you asked what steps can be taken in relation to the matter.

In this regard, the Committee on Open Government is authorized to provide advice concerning the Open Meetings Law. The Committee, whose staff consists of three employees, has neither the resources nor the authority to investigate or compel a public body to comply with law. It is my hope that advisory opinions rendered by the Committee educate, persuade and enhance compliance with the Open Meetings Law, and that judicial decisions provide precedent and guidance. However, if efforts to influence of that nature fail, the remedy involves the initiation of litigation by a member of the public or a group of persons under §107(1) of the Open Meetings Law. That provision states in part that:

"Any aggrieved person shall have standing to enforce the provisions of this article against a public body by the commencement of a proceeding pursuant to article seventy-eight of the civil practice law and rules, and/or an action for declaratory judgment and injunctive relief. In any such action or proceeding, the court shall have the power, in its discretion, upon good cause shown, to declare any action or part thereof taken in violation of this article void in whole or in part." In addition, §107(2) authorizes a court to award reasonable attorney fees to the successful party.

With respect to the substance of the matter, by way of background, the Open Meetings Law is based on a presumption of openness. Stated differently, meetings of public bodies must be conducted in public except to the extent that an executive session may appropriately be held. Paragraphs (a) through (h) of §105(1) of the Open Meetings Law specify and limit the subjects that may properly be considered during an executive session.

In my view, the only provision that might have justified the holding of an executive session is §105(1)(f) of the Open Meetings Law, which permits a public body to enter into 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..."

Under the language quoted above, it would appear that a discussion focusing on the individual candidates could validly be considered in an executive session, for it would involve a matter leading to the appointment of a particular person. Nevertheless, in the only decision of which I am aware that dealt directly with the propriety of holding an executive to discuss filling a vacancy in an elective office, the court found that there was no basis for entry into executive session. As you indicated to the Town Board, in determining that an executive session could not properly have been held, the court stated that:

"...respondents' reliance on the portion of Section 105(1)(f) which states that a Board in executive session may discuss the 'appointment...of a particular person...' is misplaced. In this Court's opinion, given the liberality with which the law's requirements of openness are to be interpreted (Holden v. Board of Trustees of Cornell Univ., 80 AD2d 378) and given the obvious importance of protecting the voter's franchise this section should be interpreted as applying only to employees of the municipality and not to appointments to fill the unexpired terms of elected officials. Certainly, the matter of replacing elected officials, should be subject to public input and scrutiny" (Gordon v. Village of Monticello, Supreme Court, Sullivan County, January 7, 1994), modified on other grounds, 207 AD 2d 55 (1994)].

Based on the foregoing, notwithstanding its language, the court in Gordon held that §105(1)(f) could not be asserted to conduct an executive session. I point out that the Appellate Division affirmed the substance of the lower court decision but did not refer to the passage quoted above. Whether other courts would uniformly concur with the finding enunciated in that passage is conjectural. Nevertheless, since it is the only decision that has dealt squarely with the issue at hand, I believe that it is appropriate to consider Gordon as an influential precedent.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Hon. Nadia Niniowsky, Supervisor
Town Board