March 10, 1997
Hon. Kevin B. Murray
Monroe County Legislature
County Office Building
39 West Main Street, Rm. 408
Rochester, NY 14614
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 Legislator Murray:
I have received your letter of February 12 in which you requested an advisory opinion concerning "open meetings and executive sessions as pertains to county legislature business."
According to your letter, at a recent meeting of the Monroe County Legislature, "members were asked to approve three referrals authorizing settlements in matters in litigation." The President of the Legislature, acting on the advice of counsel, "ruled that legislators could not ask any questions about or discuss any matters related to these three referrals in open session, that all questions and discussions could take place only in executive session, even if such questions and discussion did not directly apply to the specifics of the litigation." You wrote that you:
"...appealed the president's ruling as improper on the basis that a whole range of questions could be asked in open session related to the three cases before us, including questions of policy, and that executive session should be restricted to only those questions that pertained entirely to the specific litigation and which might damage our position in a court case if the information were made public. The chair's ruling was sustained by an 18-11 vote" (emphasis yours).
You added that you are:
"...concerned that this ruling, if allowed to stand, would seriously jeopardize the public's right to information it is entitled to and that if carried over to property settlements and personnel matters, it might stifle debate on issues and resolutions before the legislature."
In this regard, I offer the following comments.
First, I believe that a public body has the ability to adopt rules concerning the conduct of its own proceedings [see e.g., County Law, §153(8)]. However, it has been held that such rules must be reasonable and consistent with law [see Mitchell v. Board of Education of the Garden City Union Free School District, 113 AD 2d 924 (1985); Peloquin v. Arsenault, 616 NYS 2d 716 (1994)].
Second, the Open Meetings Law provides two vehicles under which the public, in appropriate circumstances, may be excluded from meetings of public bodies. One is an executive session, a portion of an open meeting during which the public may be excluded [see Open Meetings Law, §102(3)]. In short, the Open Meetings Law is based upon a presumption of openness. Stated differently, meetings must be conducted open to the public, except to the extent that the subject matter may properly be considered during an executive session. Paragraphs (a) through (h) of §105(1) of that statute specify and limit the subjects that may properly be discussed during an executive session.
Relevant to the issue that you raised is §105(1)(d) of the Open Meetings Law, which 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, I believe that the exception is intended to permit a public body to discuss its litigation strategy behind closed doors.
From my perspective, many issues may relate to litigation, but they may not involve consideration or disclosure of a public body's strategy in litigation. In view of the thrust of judicial interpretations of the Open Meetings Law, the exceptions that authorize closed sessions should be construed narrowly [see e.g., Gordon v. Village of Monticello, Supreme Court, Ulster County, August 5, 1993, modified, 207 AD 2d 55 (1994); reversed on other grounds, 87 NYS 2d 124 (1995); Holden v. Board of Trustees of Cornell University, 440 NYS 2d 58; aff'd 80 AD 2d 378 (1981)]. In the case of the litigation exception, only to the extent that a discussion involves issues focusing on litigation and litigation strategy would an executive session, in my opinion, be proper.
Since you also referred to "personnel matters", I note that the term "personnel" appears nowhere in the Open Meetings Law. Although one of the grounds for entry into executive session often relates to personnel matters, from my perspective, the term is overused and is frequently cited in a manner that is misleading or causes unnecessary confusion. To be sure, some issues involving "personnel" may be properly considered in an executive session; others, in my view, cannot. Further, certain matters that have nothing to do with personnel may be discussed in private under the provision that is ordinarily cited to discuss personnel.
The language of the so-called "personnel" exception, §105(1)(f) of the Open Meetings Law, is limited and precise. In terms of legislative history, as originally enacted, the provision in question permitted a public body to enter into an executive session to discuss:
"...the medical, financial, credit or employment history of any person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of any person or corporation..."
Under the language quoted above, public bodies often convened executive sessions to discuss matters that dealt with "personnel" generally, tangentially, or in relation to policy concerns. However, the Committee consistently advised that the provision was intended largely to protect privacy and not to shield matters of policy under the guise of privacy.
To attempt to clarify the Law, the Committee recommended a series of amendments to the Open Meetings Law, several of which became effective on October 1, 1979. The recommendation made by the Committee regarding §105(1)(f) was enacted and states that a public body may enter into an 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..." (emphasis added).
Due to the insertion of the term "particular" in §105(1)(f), I believe that a discussion of "personnel" may be considered in an executive session only when the subject involves a particular person or persons, and only when at least one of the topics listed in §105(1)(f) is considered.
Insofar as a discussion involves a particular person in relation to one or more of the subjects described in §105(1)(f), an executive session may justifiably be held. On the other hand, to the extent that it involves consideration or review of procedures, policies or practices, or the functions of an office or certain positions, irrespective of who might hold those positions, I do not believe that there would be a basis for entry into executive session. Even though those kinds of subjects might be reflective of "personnel" issues, they would not focus on any particular person and, therefore, in my opinion, should be discussed in public.
It has been advised that a motion describing the subject to be discussed as "personnel" or "specific personnel matters" is inadequate, and that the motion should be based upon the specific language of §105(1)(f). For instance, a proper motion might be: "I move to enter into an executive session to discuss the employment history of a particular person (or persons)". Such a motion would not in my opinion have to identify the person or persons who may be the subject of a discussion. By means of the kind of motion suggested above, members of a public body and others in attendance would have the ability to know that there is a proper basis for entry into an executive session. Absent such detail, neither the members nor others may be able to determine whether the subject may properly be considered behind closed doors.
It is noted that the Appellate Division has confirmed the advice rendered by this office. In discussing §105(1)(f) in relation to a matter involving the establishment and functions of a position, the Court stated 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 NY 2d 807).
"Applying these principles to the matter before us, it is apparent that the Board's stated purpose for entering into executive session, to wit, the discussion of a 'personnel issue', does not satisfy the requirements of Public Officers Law § 105 (1) (f). The statute itself requires, with respect to personnel matters, that the discussion involve the 'employment history of a particular person" (id. [emphasis supplied]). Although this does not mandate that the individual in question be identified by name, it does require that any motion to enter into executive session describe with some detail the nature of the proposed discussion (see, State Comm on Open Govt Adv Opn dated Apr. 6, 1993), and we reject respondents' assertion that the Board's reference to a 'personnel issue' is the functional equivalent of identifying 'a particular person'" (Gordon v. Village of Monticello, supra, 207 AD 2d 55, 58).
A second vehicle that authorizes private discussion arises under §108 of the Open Meetings Law. Section 108 contains three "exemptions", and if a matter is "exempted" from the Open Meetings Law, that statute is not applicable.
Of possible relevance to the matter is §108(3), which exempts from the Open Meetings Law:
"...any matter made confidential by federal or state law."
When an attorney-client relationship has been invoked, the communications made pursuant to that relationship are considered confidential under §4503 of the Civil Practice Law and Rules. Consequently, if an attorney and client establish a privileged relationship, the communications made pursuant to that relationship would in my view be confidential under state law and, therefore, exempt from the Open Meetings Law.
In terms of background, it has long been held that a municipal board may establish a privileged relationship with its attorney [People ex rel. Updyke v. Gilon, 9 NYS 243 (1989); Pennock v. Lane, 231 NYS 2d 897, 898 (1962)]. However, such a relationship is in my opinion operable only when a municipal board or official seeks the legal advice of an attorney acting in his or her capacity as an attorney, and where there is no waiver of the privilege by the client.
Lastly, I note that in a case in which the issue was whether discussions occurring during an executive session held by a school board could be considered "privileged", it was held that "there is no statutory provision that describes the matter dealt with at such a session as confidential or which in any way restricts the participants from disclosing what took place" (Runyon v. Board of Education, West Hempstead Union Free School District No. 27, Supreme Court, Nassau County, January 29, 1987). In my opinion, although information may be obtained during an executive session properly held, a claim of confidentiality can only be based upon a statute that specifically confers or requires confidentiality.
Unless a statute prohibits disclosure, I know of no law that would preclude a member of a public body from disclosing information acquired during an executive session. Similarly, I know of no judicial decisions involving the Open Meetings Law and disclosure by a member of public body of information that would be subject to the attorney-client privilege. When the privilege is operable in that context, it exists between the client, the public body, and its attorney. Although the client may waive the privilege, it is unclear whether a waiver can only be accomplished when a majority of the members of the body choose to do so, or whether a single member, acting independently, has the authority to waive the privilege and disclose what otherwise would be confidential.
While there may be no prohibition against disclosure of information acquired during executive sessions withheld, the foregoing is not intended to suggest such disclosures would be uniformly appropriate or ethical. Obviously, the purpose of an executive session is to enable members of public bodies to deliberate, to speak freely and to develop strategies in situations in which some degree of secrecy is permitted. Inappropriate disclosures could work against the interests of a public body as a whole and the public generally. The unilateral disclosure by a member of a public body might serve to defeat or circumvent the principles under which those bodies are intended to operate. Historically, I believe that public bodies were created in order to reach collective determinations, determinations that better reflect various interests within a community than a single decision maker could reach alone. Members of boards need not in my opinion be unanimous in every instance; on the contrary, they should represent disparate points of view which, when conveyed as part of a deliberative process, lead to fair and representative decision making. Nevertheless, notwithstanding distinctions in points of view, the decision or consensus of the majority of a public body should in my opinion generally be recognized and honored by those members who may dissent. Disclosures made contrary to or in the absence of consent by the majority could result the revelation of litigation strategy, in unwarranted invasions of personal privacy, impairment of collective bargaining negotiations or even interference with criminal or other investigations. In those kinds of situations, even though there may be no statute that prohibits disclosure, release of information could be damaging to individuals and the functioning of government.
I hope that I have been of assistance.
Robert J. Freeman