May 20, 1996



Ms. Carolyn Schurr
235 Pinelawn Road
Melville, NY 11747-4250

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. Schurr:

I have received your recent letter in which you sought my views concerning the propriety of an executive session held by the Nassau County Board of Health.

According to the materials attached to your letter, at its meeting of April 22, the Board of Health entered into executive session to discus "pending litigation." Nevertheless, during the executive session, smoking regulations were also discussed. In a news release announcing the Board's plan to recommend a 90 day "grace period in the implementation and enforcement" of the new provisions, it was stated that "[t]he Board discussed a three-month grace period until October 1st at an Executive Session", and that the matter "will be put on the agenda for formal ratification at the next regular meeting of the Board..."

From my perspective, based on the ensuing analysis, the Board could not have properly considered the implementation of the new regulations during an executive session. Moreover, the news release indicates that the Board effectively took action. From my perspective, that action should have been taken during an open meeting and memorialized in minutes of its meeting of April 22. In this regard, I offer the following comments.

First, as a general matter, 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 a closed or executive session may be appropriately held. Further, a public body cannot enter into an executive session to discuss the subject of its choice; on the contrary, paragraphs (a) through (h) of §105(1) of the Open Meetings Law specify and limit the subjects that may properly be considered behind closed doors.

Second, as I understand the matter, the issues before the Board essentially involved legislation, the new smoking regulations, and its implementation. If that is so, in my view, none of the grounds for entry into executive session could justifiably have been asserted.

It is noted, too, that the Appellate Division, Second Department, has held that the mere threat or possibility of litigation is insufficient to justify the holding of an executive session. The so-called "litigation" exception, §105(1)(d) of the Open Meetings Law, permits a public body to enter into an executive session to discuss "proposed, pending or current litigation". In construing the language quoted above, 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, 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. Since possible litigation could be the subject or result of nearly any topic discussed by a public body, an executive session could not in my view be held to discuss an issue merely because there is a possibility of litigation, or because it involves a legal matter.

Lastly, the Board effectively took action, and admitted as much in its news release, stating that the action will be "formally ratified" at an upcoming meeting and that its "decision" will be discussed with County legislators. Assuming that there was no basis for discussing issues involving the smoking regulations in an executive session, I believe that the Board should have acted during an open meeting and that it is required to prepare minutes reflective of its action.

When action is taken by a public body, it must be memorialized in minutes, for §106 of the Open Meetings Law provides that:

"1. Minutes shall be taken at all open meetings of a public body which shall consist of a record or summary of all motions, proposals, resolutions and any other matter formally voted upon and the vote thereon.

2. Minutes shall be taken at executive sessions of any action that is taken by formal vote which shall consist of a record or summary of the final determination of such action, and the date and vote thereon; provided, however, that such summary need not include any matter which is not required to be made public by the freedom of information law as added by article six of this chapter.

3. Minutes of meetings of all public bodies shall be available to the public in accordance with the provisions of the freedom of information law within two weeks from the date of such meetings except that minutes taken pursuant to subdivision two hereof shall be available to the public within one week from the date of the executive session."

In view of the foregoing, it is clear in my opinion that minutes of open meetings must include reference to action taken by a public body.

Further, if a public body reaches a consensus upon which it relies, I believe that minutes reflective of decisions reached must be prepared and made available. In Previdi v. Hirsch [524 NYS 2d 643 (1988)], the issue involved access to records, i.e., minutes of executive sessions held under the Open Meetings Law. Although it was assumed by the court that the executive sessions were properly held, it was found that "this was no basis for respondents to avoid publication of minutes pertaining to the 'final determination' of any action, and 'the date and vote thereon'" (id., 646). The court stated that:

"The fact that respondents characterize the vote as taken by 'consensus' does not exclude the recording of same as a 'formal vote'. To hold otherwise would invite circumvention of the statute.

"Moreover, respondents' interpretation of what constitutes the 'final determination of such action' is overly restrictive. The reasonable intendment of the statute is that 'final action' refers to the matter voted upon, not final determination of, as in this case, the litigation discussed or finality in terms of exhaustion or remedies" (id. 646).

Therefore, if the Board reached a "consensus" that is reflective of its final determination of an issue, I believe that minutes must be prepared that indicate its action, as well as the manner in which each member voted [see FOIL, §87(3)(a)]. I recognize that the public bodies often attempt to present themselves as being unanimous and that a ratification of a vote is often carried out in public. Nevertheless, if a ratification does not indicate how the members actually voted behind closed doors, the public may be aware of the members' views on a given issue.

In an effort to enhance compliance with and understanding of the Open Meetings Law, a copy of this opinion will be sent to the Board of Health

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Board of Health