April 15, 1997
Hon. Lee J. Konkle
Town of Kinderhook
P.O. Box P
Niverville, NY 12130
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 Supervisor Konkle:
I have received your letters of March 28.
The first relates to a challenge to an executive session held by the Kinderhook Town Board. You wrote that the person who raised the issue, has "no official status as a matter of Town government", and "apparently contacted [this] agency and spoke with [me] asking for an opinion" concerning the propriety of the executive session. You asked whether it is our policy "to address diver [sic] matters and render opinions, although advisory to a voice on a telephone line."
In short, I answer in the affirmative. The Committee on Open Government responds to literally thousands of telephone inquiries annually and offers advice and guidance to any caller. It is assumed that callers raise issues and questions in good faith, and the staff responds in good faith. I note, too, that more telephone inquiries are made by officials of state and local government than any other group. Our goal is to offer the most correct response, based on the language of the law and its judicial interpretation, irrespective of who asks a question.
The second letter relates to the same executive session. You wrote that the issue considered in executive session involved "the determining of an appropriate boundary line between two public entities, the Village and Town of Kinderhook." Further, you indicated that:
"an exploratory meeting was conducted between representatives of two governments which include attorneys, surveyors, assessors and code enforcement officers prior to this executive session. Additionally a third party, a land and home developer is a major role player in the discussions as to the giving or taking of lands by the political subdivisions as well as to the costs for such agreement, and the professional services required to conclude the project. The land owner owns and intends to sell properties which traverse what is believed to be certain lands as owned by either of the political subdivisions.
"So in point of fact, land values including land value assessments, professional services to be rendered predicated upon the taking or giving of lands by the Village and Town are real issues which were addressed in the executive session."
In this regard, as you are aware, 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). 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."
Based on the foregoing, 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.
A discussion of boundary lines between a village and a town would not appear, of itself, to "substantially affect" the value of real property is discussed in public, particularly if the public is aware of the general subject of the discussion and the location of the area under consideration.
Further, I believe that §105(1)(h) is intended to enable the government to engage in real property transactions optimal to taxpayers; it pertains, in my view, to the acquisition, sale or lease of real property by a governmental entity. The provision is intended, in my view, to protect the interests of taxpayers, not the interests of private owners of real property.
Assuming that the issue involved municipal boundary lines and the potential sale of real property by a private landowner or owners, I do not believe that §105(1)(h) would have applied. On the other hand, if I have misinterpreted the facts, and if the Town is involved in the proposed acquisition, sale or lease of the property, the executive session would have been properly held, but only to the extent that publicity would have substantially affected the value of the property, which is the key consideration under §105(1)(h).
I hope that I have been of assistance. If you would like to discuss the matter further, please feel free to contact me.
Robert J. Freeman