April 15, 1996
Hon. Charles L. White II
Trustee, Village of Valatie
6501 Smith Circle
Valatie, NY 12184
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 Trustee White:
I have received your letter of April 5. In your capacity as a newly elected member of the Board of Trustees of the Village of Valatie, you have sought an advisory opinion concerning the Open Meetings Law.
According to your letter, during your first meeting, the Board passed a resolution "to allow members of the press to attend an executive session regarding a personnel matter." It is your view that members of the new media do not have "any special privilege above that of any resident in attendance." I agree with your contention for the following reasons.
First, §103(a) of the Open Meetings Law states that meetings of public bodies "shall be open to the general public." As such, the Law does not distinguish among members of the public; any person, regardless of his or her status, interest or residence would have the right to attend an open meeting of a public body.
Second, in a related vein, I note that nothing in the Open Meetings Law provides the news media with rights that exceed or are in any way different from the public generally. While it may be true that the news media plays a unique role in relation to the use of open government statutes, they have no special rights and serve, in my view, as the eyes and ears and as an extension of the public.
Third, as you may be aware, §102(3) of the Open Meetings Law defines the phrase "executive session" to mean a portion of an open meeting during which the public may be excluded, and I believe that the function of an executive session is to enable members of public bodies to confer candidly in private. Also relevant to the matter is §105(2), which provides 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". Therefore, the only people who have the right to attend executive sessions are the members of the public body conducting the executive session. A public body may, however, authorize others to attend an executive session. While the Open Meetings Law does not describe the criteria that should be used to determine which persons other than members of a public body might properly attend an executive session, I believe that every law, including the Open Meetings Law, should be carried out in a manner that gives reasonable effect to its intent. Typically, those persons other than members of public bodies who are authorized to attend are the clerk, the public body's attorney, the superintendent in the case of a board of education, or a person who has some special knowledge or expertise that relates to the subject of the executive session.
A member of the news media generally attends meetings of public bodies in order to acquire information to be communicated to the general public. Again, that person has no rights under the Open Meetings Law additional to those accorded to the public generally. In consideration of those factors and the preceding commentary, it is my view that permitting the news media to attend an executive session is the equivalent of permitting the public to attend, and I do not believe that a public body could validly justify authorizing the news media to be present at an executive session while excluding all other members of the public. Stated differently, if a public body authorizes the news media to attend an executive session, I believe that it effectively loses its basis for holding an executive session, for members of the news media serve as representatives of the public.
In short, in my opinion, it would be unreasonable and inconsistent with the general thrust of the Open Meetings Law to permit certain members of the public, in this instance, members of the news media, to attend an executive session while excluding others.
I hope that I have been of assistance.
Robert J. Freeman