February 25, 1998
Mr. Kevin Harlin
The Ithaca Journal
123 W. State Street
Ithaca, NY 14850
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, unless otherwise indicated.
Dear Mr. Harlin:
I have received your letter of January 30 in which you requested an advisory opinion concerning the propriety of an executive session held by the Budget and Administration Committee of the City of Ithaca Common Council.
According to your letter, the Committee had planned to discuss and perhaps recommend changes in the City's snow emergency policy as it relates to employees who do not go to work during a state of emergency. You indicated that at least one employee filed a grievance, contending that the policy was unfair and that benefit time should be restored. The Chair of the Committee informed you that the issue of policy would be tabled, pending an executive session concerning the grievance. The City Attorney suggested to you that the initiation of the grievance, in your words, "made it a litigation matter and a personnel item" and that consideration of the fairness of the policy and the merits of the grievance could not be separated. Consequently, you wrote that "she found it necessary to advise the committee to discuss strategies for the grievance in executive session, and then let the grievance run its course before bringing the general policy question back to the table."
It is your contention that the matter involved neither litigation nor personnel and that the executive session should have been conducted open to the public.
In good faith, I note that I recently received correspondence from the City Attorney in which she explained her position concerning the executive session. In addition to her contention that the matter involved litigation, she wrote that the "discussion covered collective negotiations" and that "resolving the grievance was inextricably linked with the collective bargaining issues."
She also expressed the view that the discussion would have been exempted from the Open Meetings Law, citing the attorney-client privilege.
In this regard, I offer the following comments.
First, as you are aware, the Open Meetings Law requires that a procedure be accomplished, during an open meeting, before a public body may enter into an executive session. Specifically, §105(1) states in relevant part that:
"Upon a majority vote of its total membership, taken in an open meeting pursuant to a motion
identifying the general area or areas of the subject or subjects to be considered, a public
body may conduct an executive session for the below enumerated purposes only..."
As such, a motion to conduct an executive session must include reference to the subject or subjects to be discussed, and the motion must be carried by majority vote of a public body's membership before such a session may validly be held. The ensuing provisions of §105(1) specify and limit the subjects that may appropriately be considered during an executive session.
The provision that deals with litigation is §105(1)(d), which permits a public body to enter into an executive session to discuss "proposed, pending or current litigation". Whether the initiation of a grievance or grievance proceeding could be characterized as "litigation" is, in my opinion,
questionable. From my perspective, litigation involves a contest between opposing parties in a court. A grievance proceeding is not conducted before a court. For that reason, I do not believe that a discussion relating to a grievance could be characterized as a matter pertaining to litigation.
It is also noted that the scope of the so-called litigation exception is narrow. As stated judicially:
"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 Yorketown, 83 AD d. 612, 613, 441 N.S. d. 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" [Weatherwise v.
Town of Stony Point, 97 AD d. 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. Assuming that litigation strategy can be separated from consideration of policy matters, such a distinction must be made in my opinion in order to give effect to public policy considerations reflected in the Open Meetings Law.
Next, I note that the term "personnel" does not appear in the Open Meetings Law. Further, the exception that is typically cited to discuss personnel matters would not, in my opinion, have been applicable in conjunction with the facts that you presented. Section 105(1)(f) permits a public body to enter into 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..."
While the grievance might have been brought by a single individual, its outcome presumably would affect all employees subject to the policy. Further, it does not appear that the matter would have involved a specific individual in relation to the subjects enumerated in §105(1)(f).
The remaining basis for entry into executive session of significance, §105(1)(e), permits a public body to discuss: "collective negotiations pursuant to article fourteen of the civil service law..." Stated differently, a public body is permitted to hold an executive session to discuss collective
bargaining negotiations involving a public employee union. As I understand the situation, the grievance related to the manner in which the City's snow emergency policy should be applied, and despite the City Attorney's contention, it is not entirely clear how the matter related to collective bargaining negotiations.
Lastly, as suggested by the City Attorney, there is a separate vehicle that may authorize a public body to engage in a private discussion. Section 108 of the Open Meetings Law pertains to "exemptions." If an exemption applies, the Open Meetings Law does not. One of the exemptions, §108(3), concerns "any matter made confidential by federal or state law." When an attorney-client relationship has been invoked, the communications between the attorney and the client are confidential under §4503 of the Civil Practice Law and Rules. Therefore, 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.
Insofar as a public body seeks legal advice from its attorney and the attorney renders legal advice, I believe that the attorney-client privilege may validly be asserted and that communications made within the scope of the privilege would be outside the coverage of the Open Meetings Law.
Therefore, even though there may be no basis for conducting an executive
session pursuant to §105 of the Open Meetings Law, a private discussion
might validly be held based on the proper assertion of the attorney-client
privilege pursuant to §108, and legal advice may be requested even though
litigation or possible litigation is not an issue. In that case, while neither the
litigation nor any other exception for entry into executive session would apply, there may be a proper assertion of the attorney-client privilege.
I note that the mere presence of an attorney does not signify the existence of an attorney-client relationship; in order to assert the attorney-client privilege, the attorney must in my view be providing services in which the expertise of an attorney is needed and sought. Further, often at some point in a discussion, the attorney stops giving legal advice and a public body
may begin discussing or deliberating independent of the attorney. When that point is reached, I believe that the attorney-client privilege has ended and that the body should return to an open meeting.
I hope that the foregoing serves to clarify the provisions of the Open Meetings Law and that I have been of assistance.
Robert J. Freeman
cc: Mariette Geldenhuys