July 9, 1997




Robert E. Drake
Superintendent of Schools
Berne-Knox-Westerlo Central School District
1738 Helderberg Trail
Berne, NY 12023

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 Mr. Drake:

I have received your letter of June 2, which reached this office on June 12. Please accept my apologies for the delay in response.

You have sought an advisory opinion concerning "the legality" of a meeting held pursuant to a collective bargaining agreement between the Berne-Knox-Westerlo Central School District and the Teachers Association. The provision of the agreement at issue states that:

"Members of the Board shall call a yearly closed meeting, either formally or informally, with the members of the faculty sometime during the months of February or March to discuss matters of mutual concern."

You wrote that, to date, the meetings described above have been held "between the Board of Education and the Faculty excluding the public and the administration."

From my perspective, the meetings held pursuant to the agreement fall within the coverage of the Open Meetings Law. In this regard, I offer the following comments.

First, it is emphasized that the definition of "meeting" [see Open Meetings Law, section 102(1)] has been broadly interpreted by the courts. In a landmark decision rendered in 1978, the Court of Appeals, the state's highest court, found that any gathering of a quorum of a public body for the purpose of conducting public business is a "meeting" that must be convened open to the public, whether or not there is an intent to take action and regardless of the manner in which a gathering may be characterized [see Orange County Publications v. Council of the City of Newburgh, 60 AD 2d 409, aff'd 45 NY 2d 947 (1978)].

I point out that the decision rendered by the Court of Appeals was precipitated by contentions made by public bodies that so-called "work sessions" and similar gatherings held for the purpose of discussion, but without an intent to take action, fell outside the scope of the Open Meetings Law. In discussing the issue, the Appellate Division, whose determination was unanimously affirmed by the Court of Appeals, stated that:

"We believe that the Legislature intended to include more than the mere formal act of voting or the formal execution of an official document. Every step of the decision-making process, including the decision itself, is a necessary preliminary to formal action. Formal acts have always been matters of public record and the public has always been made aware of how its officials have voted on an issue. There would be no need for this law if this was all the Legislature intended. Obviously, every thought, as well as every affirmative act of a public official as it relates to and is within the scope of one's official duties is a matter of public concern. It is the entire decision-making process that the Legislature intended to affect by the enactment of this statute" (60 AD 2d 409, 415).

The court also dealt with the characterization of meetings as "informal," stating that:

"The word 'formal' is defined merely as 'following or according with established form, custom, or rule' (Webster's Third New Int. Dictionary). We believe that it was inserted to safeguard the rights of members of a public body to engage in ordinary social transactions, but not to permit the use of this safeguard as a vehicle by which it precludes the application of the law to gatherings which have as their true purpose the discussion of the business of a public body" (id.).

Based upon the direction given by the courts, if a majority of the Board gathers to discuss District business, in their capacities as Board members, any such gathering, in my opinion, would constitute a "meeting" subject to the Open Meetings Law. Therefore, I believe that the meetings at issue, if they continue to be held, must be preceded by notice given in accordance with §104 of the Open Meetings Law and conducted open to the public to the extent required by that statute.

Second, insofar as a provision of a contract or similar agreement restricts access to meetings in a manner inconsistent with law, I believe that it has no legal effect. Section 110 of the Open Meetings Law pertains to the relationship between that statute and other provisions of law, and subdivision (1) of section 110 states that:

"Any provision of a charter, administrative code, local law, ordinance, or rule or regulation affecting a public body which is more restrictive with respect to public access than this article shall be deemed superseded hereby to the extent that such provision is more restrictive than this article."

While the contract is not a law, in my view, since a provision of law could not diminish public rights of access to meetings of public bodies, the contract could not restrict those rights. In short, since the provision of the contract is "more restrictive with respect to public access" that the Open Meetings Law, I believe that it would be "deemed superseded."

Lastly, as you are aware, §105(1) of the Open Meetings Law specifies and limits the subjects that may properly be considered during executive sessions. It is unlikely in my opinion that the grounds for entry into executive session would be pertinent to the kinds of discussions that would occur at the meetings in question.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director