February 9, 1996
Ms. Margot Lucy Thomas
Attorney at Law
197 School House Road
Albany, NY 12203
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 Ms. Thomas:
As you are aware, I have received your letter of January 11 in which you requested an advisory opinion concerning the Open Meetings Law. Please accept my apologies for the delay in response.
According to your letter, you represent an applicant for approval of a planned district development project known as "Forest Grove" in the Town of Wilton, and on October 18, the Town Planning Board determined that your client's draft environmental impact statement previously submitted to the Town as the lead agency was complete for purposes of conducting a public review pursuant to the State Environmental Quality Review Act (SEQR). You wrote that at that meeting, the "Planning Board took a straw vote and arrived at a consensus that it desired to render a certain decision on the project, without continuing to process [your] client's application under SEQR." At that time, you "opined to the Board, in words or substance, that should the Board proceed to take the action it was considering, it would violate the provisions of SEQR and resultant litigation may ensue." You added that the minutes of that meeting indicate that you said: "We could be in court."
The minutes of an ensuing meeting held on November 15 state that the Planning Board conducted an executive session concerning the Forest Grove Project for the purpose of considering "proposed or pending litigation, particularly litigation proposed by the attorney for the Forest Grove PUD project against the Town of Wilton."
You have questioned the propriety of the executive session and the sufficiency of the motion for entry into executive session. In this regard, I offer the following comments.
First, as you may be aware, the Open Meetings Law is based on a presumption of openness. Stated differently, the Law requires that meetings of public bodies be conducted in public, except to the extent that a closed or executive session may properly be held. Paragraphs (a) through (h) of §105(1) of the Law specify and limit the subjects that may be considered in an executive session, and it is clear in my view that those provisions are generally intended to enable public bodies to exclude the public from their meetings only to the extent that public discussion would result in some sort of harm, perhaps to an individual in terms of the protection of his or her privacy, or to a government in terms of its ability to perform its duties in the best interests of the public.
Second, the provision pertaining to litigation, §105(1)(d), permits a public body to enter into executive session to discuss "proposed, pending or current litigation." While the courts have not sought to define the distinction between "proposed" and "pending" or between "pending" and "current" litigation, they have provided direction concerning the scope of the exception in a manner consistent with the description of the general intent of the grounds for entry into executive session suggested in my remarks in the preceding paragraph, i.e., that they are intended to enable public bodies to avoid some sort of identifiable harm. For instance, in a decision dealing with a situation that appears to have been analogous to that which you presented, it was determined that the mere possibility, threat or fear of litigation would be insufficient to conduct an executive session. Specifically, it was held that:
"The purpose of paragraph d is 'to enable a public body to discuss pending litigation privately, without baring its strategy to its adversary through mandatory public meetings' (Matter of Concerned Citizens to Review Jefferson Val. Mall v. Town Bd. Of Town of Yorktown, 83 AD 2d 612, 613, 441 NYS 2d 292). The belief of the town's attorney that a decision adverse to petitioner 'would almost certainly lead to litigation' does not justify the conducting of this public business in an executive session. To accept this argument would be to accept the view that any public body could bar the public from its meetings simply be expressing the fear that litigation may result from actions taken therein. Such a view would be contrary to both the letter and the spirit of the exception" [Weatherwax v. Town of Stony Point, 97 AD 2d 840, 841 (1983)].
Based upon the foregoing, I believe that the exception is intended to permit a public body to discuss its litigation strategy behind closed doors, rather than issues that might eventually result in litigation. Again, §105(1)(d) would not permit a public body to conduct an executive session due to a possibility or fear of litigation. As the court in Weatherwax suggested, if the possibility or fear of litigation served as a valid basis for entry into executive session, there could be little that remains to be discussed in public, and the intent of the Open Meetings Law would be thwarted.
In the instant situation, in my view, only to the extent that the Board discussed its litigation strategy would the executive session have properly been held.
Lastly, on the basis of the motion for entry into executive session, one cannot discern whether or the extent to which the Board discussed or intended to discuss litigation strategy. In this regard, with respect to the sufficiency of a motion to discuss litigation, it has been held that:
"It is insufficient to merely regurgitate the statutory language; to wit, 'discussions regarding proposed, pending or current litigation'. This boilerplate recitation does not comply with the intent of the statute. To validly convene an executive session for discussion of proposed, pending or current litigation, the public body must identify with particularity the pending, proposed or current litigation to be discussed during the executive session" [Daily Gazette Co. , Inc. v. Town Board, Town of Cobleskill, 44 NYS 2d 44, 46 (1981), emphasis added by court].
Further, in a recent decision rendered by the Appellate Division, Third Department, one of the issues involved the adequacy of a motion to conduct an executive session to discuss what was characterized as "a personnel issue", and it was held that:
"...the public body must identify the subject matter to be discussed (see, Public Officers Law § 105 , and it is apparent that this must be accomplished with some degree of particularity, i.e., merely reciting the statutory language is insufficient (see, Daily Gazette Co. v Town Bd., Town of Cobleskill, 111 Misc 2d 303, 304-305). Additionally, the topics discussed during the executive session must remain within the exceptions enumerated in the statute (see generally, Matter of Plattsburgh Publ. Co., Div. of Ottaway Newspapers v City of Plattsburgh, 185 AD2d §18), and these exceptions, in turn, 'must be narrowly scrutinized, lest the article's clear mandate be thwarted by thinly veiled references to the areas delineated thereunder' (Weatherwax v Town of Stony Point, 97 AD2d 840, 841, quoting Daily Gazette Co. v Town Bd., Town of Cobleskill, supra, at 304; see, Matter of Orange County Publs., Div. of Ottaway Newspapers v County of Orange, 120 AD2d 596, lv dismissed 68 NY2d 807)" [Gordon v. Village of Monticello, 207 AD 2d 55, 58 (1994)].
I hope that I have been of assistance.
Robert J. Freeman
cc: Planning Board