August 19, 1998
Mr. Anthony C. Zacharakis
125 Oak Tree Road, P.O. Box 85
Tappan, NY 10983
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. Zacharakis:
I have received your letter of August 12 and a copy of a resolution adopted on January 5 by the Town Board of the Town of Orangetown. The resolution states in relevant part as follows:
"RESOLVED, that the 1998 Executive Sessions start at 6:30 P.M.; Regular town Board Meetings at 7:30 P.M.; and Town Board Workshops at 8:00 P.M. Audit Meetings shall begin immediately before the regularly scheduled Regular Town Board or Workshop Meeting."
The remainder of the resolution consists of a schedule by date of executive sessions,
workshops, audit meetings and regular town board meetings.
You have sought my views on the matter. In this regard, I offer the following comments.
First, in my view, there is no legal distinction between a "workshop" and an audit
meeting or a regular Town Board meeting. By way of background, it is noted that the
definition of "meeting" 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 a public body gathers to discuss public business, any such gathering, in my opinion, would ordinarily constitute a
"meeting" subject to the Open Meetings Law that must be preceded by notice given in accordance with §104 of the Law. Assuming that a majority of the Board is present, again,
for purposes of giving effect to the Open Meetings Law, there is no distinction between a
workshop, an audit meeting and a regular meeting.
Second, the phrase "executive session" is defined in §102(3) of the Open Meetings
Law to mean a portion of an open meeting during which the public may be excluded. As
such, an executive session is not separate and distinct from a meeting, but rather is a portion
of an open meeting. The Law also contains a procedure that must be accomplished during
an open meeting before an executive session may be held. 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 indicated in the language quoted above, a motion to enter into an executive session must
be made during an open meeting and include reference to the "general area or areas of the
subject or subjects to be considered" during the executive session.
It has been consistently advised and held that a public body cannot schedule or conduct an executive session in advance of a meeting, because a vote to enter into an executive session must be taken at an open meeting during which the executive session is held. In a decision involving the propriety of scheduling executive sessions prior to meetings, it was held that:
"The respondent Board prepared an agenda for each of the five designated regularly scheduled meetings in advance of the time that those meetings were to be held. Each agenda listed 'executive session' as an item of business to be undertaken at the meeting. The petitioner claims that this procedure violates the Open Meetings Law because under the provisions of Public Officers Law section 100 provides that a public body cannot schedule an executive session in advance of the open meeting. Section 100 provides that a public body may conduct an executive session only for certain enumerated purposes after a majority vote of the total membership taken at an open meeting has approved a motion to enter into such a session. Based upon this, it is apparent that petitioner is technically correct in asserting that the respondent cannot decide to enter into an executive session or schedule such a session in advance of a proper vote for the same at an open meeting" [Doolittle, Matter of v. Board of Education, Sup. Cty., Chemung Cty., July 21, 1981; note: the Open Meetings Law has been renumbered and §100 is now §105].
For the reasons expressed in the preceding commentary, a public body cannot in my view schedule an executive session in advance of a meeting. In short, because a vote to enter into an executive session must be made and carried by a majority vote of the total membership during an open meeting, it cannot be known in advance of that vote that the motion will indeed be approved.
In an effort to enhance compliance with and understanding of the Open Meetings Law, a copy of this opinion will be sent to the Town Board.
I hope that I have been of assistance.
Robert J. Freeman
cc: Town Board