March 29, 1996



Hon. Richard L. Taczkowski
Town of North Collins
P.O. Box 306
North Collins, NY 14111

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. Taczkowski:

I have received your letter of March 18. You wrote that in your former role as a village trustee and your current capacity as a member of the North Collins Town Board, you have found that "questions regarding the degree of information an enforcement (i.e. code, dog, police, bingo) officer can provide a public body about civil or criminal enforcement activities has always been a source of governmental tension." Consequently, you asked that I address "what types of information regarding such enforcement/investigative activities must/may be presented in an open meeting and what information reportage more properly falls under the exceptions provided in the Open Meetings Law."

In this regard, I offer the following comments.

First, the extent to which the kinds enforcement activities are considered by municipal bodies at meetings varies from one entity of government to the next. Some may be heavily involved in the functions of a police department or dog control officer, for example; others may not. Similarly, in large municipalities with large staffs, it is unlikely that the governing bodies of those municipalities discuss in detail specific enforcement or investigative efforts; in smaller municipalities, there may be more direct control or interest by the governing body. In short, the areas of concern that you described may be discussed frequently or at length by some public bodies, but minimally by others. Further, the Open Meetings Law does not address what should or must be discussed by a public body. Rather, it imposes a requirement that discussions of public business be conducted in public, unless in appropriate circumstances it chooses to enter into executive session.

Second, the Open Meetings Law is permissive. Stated differently, even though a public body may have the authority to enter into an executive session, it is not required to conduct an executive session. Moreover, as you are aware, a procedure must be accomplished during an open meeting before a public body may enter into an executive session. Specifically, §105(1) 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..."

Based upon the language quoted above, an executive session may be held only after a motion is made and carried by a majority of the total membership. Additionally, paragraphs (a) through (h) specify and limit the subjects that may properly be considered during an executive session. Therefore, a public body cannot conduct an executive session to discuss the subject of its choice.

With respect to the ability of a pubic body to enter into executive sessions to discuss the kinds of issues that you described, several of the grounds for entry into executive session may be pertinent. However, with respect to most of them, their proper assertion would, in my opinion, be rare.

Of some significance are the first three grounds for entry into executive session. They deal with:

"a. matters which will imperil the public safety if disclosed;

b. any matter which may disclose the identity of a law enforcement agent or informer;

c. information relating to current or future investigation or prosecution of a criminal offense which would imperil effective law enforcement if disclosed..."

Paragraphs (a) and (b) would likely arise rarely if ever.

Paragraph (c) could be discussed only in relation to "criminal" matters and only then when public discussion would "imperil effective law enforcement."

Potentially relevant is paragraph (d), which permits a public body to enter into executive session to discuss "proposed, pending or current litigation." Again, I would conjecture that litigation would infrequently be discussed in relation to the matters that you described. It is noted, too, that it has been held that:

"The purpose of paragraph d is "to enable 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.

The remaining ground for entry into executive session of significance would in my view be paragraph (f), which authorizes 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..."

Although the language quoted above may be somewhat limited, it is possible that situations might arise in conjunction with the activities to which you referred that would authorize the assertion of §105(1)(f) as a basis for conducting an executive session.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director