July 24, 1998


Mr. Rodney Bordeaux
89 South 29 Street
Wyandanch, NY 11798

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

Dear Mr. Bordeaux:

I have received your letter of July 14 in which you requested an advisory opinion
concerning certain actions of the Board of Trustees of the Wyandanch Public Library.

According to your letter, at a recent meeting, the Director of the Library "went to collect...paper ballots for offices of the President and Vice President from each elected board member." After doing so, he "read out the final tally." You expressed the view that "voting by paper ballots does no give the true determination for what each elected member voted" and that the Board "should hold the nomination for seats such as President and Vice President out in the open for the public to view."

First, as you may be aware, §260-a of the Education Law specifies that library boards
of trustees are required to comply with the Open Meetings Law.

Second, paragraphs (a) through (h) of §105(1) specify and limit the subjects that may
properly be considered during an executive session. As such, a public body cannot conduct
an executive session to discuss the subject of its choice.

In my opinion, discussions regarding the election of officers would not ordinarily fall
within any of the grounds for entry into executive session. The only provision that appears
to be relevant to the possibility of engaging in a private discussion, §105(1)(f) of the Open
Meetings Law, permits a public body to conduct 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..."

Although the discussion and election of officers involves consideration of particular
individuals, it is unlikely that any of the specific subjects included within §105(1)(f) would
have been applicable in conjunction with deliberations involving the selection of school board officers. In short, while "matters leading to" certain actions relating to specific persons may be discussed during executive sessions, matters leading to the election of officers is rarely among them.

With regard to information detailing how each member voted, I direct your attention
to the Freedom of Information Law. Section 87(3)(a) provides that:

"Each agency shall maintain:

(a) a record of the final vote of each member in every agency proceeding in which the member votes..."

Based upon the foregoing, when a final vote is taken by an "agency", which is defined to
include a state or municipal board [see §86(3)], such as a school board, a record must be
prepared that indicates the manner in which each member who voted cast his or her vote.
Ordinarily, records of votes will appear in minutes.

In terms of the rationale of §87(3)(a), it appears that the State Legislature in precluding secret ballot voting sought to ensure that the public has the right to know how its representatives may have voted individually with respect to particular issues. Although the
Open Meetings Law does not refer specifically to the manner in which votes are taken or
recorded, I believe that the thrust of §87(3)(a) of the Freedom of Information Law is
consistent with the Legislative Declaration that appears at the beginning of the Open Meetings Law and states that:

"it is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy. The people must be able to remain informed if they are to retain control over those who are their public servants."

Moreover, in an Appellate Division decision that was affirmed by the Court of Appeals, it was found that "The use of a secret ballot for voting purposes was improper." In so holding, the Court stated that: "When action is taken by formal vote at open or executive sessions, the Freedom of Information Law and the Open Meetings Law both require open voting and a record of the manner in which each member voted [Public Officers Law §87[3][a]; §106[1], [2]" Smithson v. Ilion Housing Authority, 130 AD 2d 965, 967 (1987); aff'd 72 NY 2d 1034 (1988)]. If a vote to elect an officer does not result in a majority for any
candidate, and the vote is not "final", I do not believe that the votes of each member must be recorded. Under §87(3)(a), the members' votes must be memorialized only in the case of a "final" vote.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Board of Trustees
Wendell Cherry, Director