December 27, 1996
Ms. Leona Ortlieb
CSEA Hospital Unit
0825 P.O. Box 324
Martinsburg, NY 13404
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. Ortlieb:
I have received your letter of November 27 in which you requested a "ruling" concerning the propriety of an executive session conducted by the Lewis County Board of Legislators.
According to your letter, the Board entered into executive session to discuss the "sale of property", specifically, the transfer of the County Hospital to a not-for-profit corporation. You indicated that "[t]he proposed sale involves no bids or actual market value on the hospital" and "would simply involve the transfer of the facility and existing debts."
In this regard, it is emphasized at the outset that the Committee on Open Government is authorized to provide advice and opinions concerning the Open Meetings Law. It is not empowered to issue a "ruling" or otherwise compel a public body to comply with law. Therefore, the following remarks should be considered advisory in nature.
First, the Open Meetings Law is based upon a presumption of openness. Specifically, the Law requires that meetings be conducted open the public, except to the extent that an executive session may be held in accordance with the provisions of paragraphs (a) through (h) of §105(1).
Second, the only provision that appears to have been relevant concerning the executive session at issue is §105(1)(h). That provision permits a public body to enter into executive session to discuss:
"the proposed acquisition, sale or lease of real property or the proposed acquisition of securities, or sale or exchange of securities held by such public body, but only when publicity would substantially affect the value thereof."
In my opinion, the language quoted above, like the other grounds for entry into executive session, is based on the principle that public business must be discussed in public unless public discussion would in some way be damaging, either to an individual, for example, or to a government in terms of its capacity to perform its functions appropriately and in the best interest of the public. It is clear that §105(1)(h) does not permit public bodies to conduct executive sessions to discuss all matters that may relate to the transaction of real property; only to the extent that publicity would "substantially affect the value of the property" can that provision validly be asserted.
If the general public was aware of the parcel under consideration for the proposed transaction and the identities of the parties, and if no entity other than the not-for-profit corporation would potentially have been involved in the transaction, it is difficult to envision how public discussion of the matter would had an impact on the value of the property. However, in some circumstances, even when the parties and the site of the parcel are known, a discussion of financial terms or a negotiation process, might, if conducted in public, have an effect on the value of the property. If the effect upon the value would be "substantial", as opposed to minimal or possible, an executive session could, to that extent, be properly held.
I hope that I have been of assistance.
Robert J. Freeman
cc: Board of Legislators