October 9, 1998
Mr. C. Richard Sorvillo
64 Beaumont Avenue
Massapequa, NY 11758
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. Sorvillo:
As you are aware, I have received your letter of September 25. In your capacity as
a member of the Massapequa School District Board of Education, you have questioned the
propriety of "discussion behind closed doors in a retreat or executive session, not open to the public." You enclosed a variety of materials that describe the topics considered during
retreats and executive sessions.
According to the materials, a "retreat" was held on July 7, and among the subjects
considered were the BOCES public relations program, the role of spring exhibits and their
impact on classroom activities, advisory committee assignments, District goals, Board of
Education goals and procedures. Another retreat was held on July 30, and the Board
considered procedures relating to the preparation of minutes of meetings and a variety of
policies and procedures. Also attached is a copy of the minutes of a special meeting in which reference is made to an executive session held "for the purpose of discussing negotiations and personnel."
From my perspective, the retreats, as they are described in the materials that you sent,
clearly fell within the coverage of the Open Meetings Law, and most aspects of those
gatherings should have been conducted in public. Additionally, the extent to which executive
sessions were appropriately held is unclear. In this regard, I offer the following comments.
First, §102(1) of the Open Meetings Law defines the term "meeting" to mean "the official convening of a public body for the purpose of conducting public business". It is emphasized that the definition of "meeting" has been broadly interpreted by the courts. In a landmark decision rendered in 1978, the Court of Appeals 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)].
Inherent in the definition and its judicial interpretation is the notion of intent. If there
is an intent that a majority of a public body will convene for the purpose of conducting public
business, such a gathering would, in my opinion, constitute a meeting subject to the requirements of the Open Meetings Law.
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, Second Department, which includes Westchester County and 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, when a majority of a public body
gathers to discuss public business, in their capacities as members of the body, any such
gathering, in my opinion, would constitute a "meeting" subject to the Open Meetings Law.
In my view, with respect to each of the gatherings described in the correspondence, the issues
under consideration involved matters of public business. Consequently, despite their
characterization as "retreats", I believe that they were "meetings" that should have been held
in accordance with the requirements of the Open Meetings Law.
Second, the descriptions of executive sessions referenced in the minutes as"negotiations and personnel" are vague and do not necessarily indicate that executive sessions were properly held.
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 language of the so-called "personnel" exception, §105(1)(f) of the Open Meetings
Law, is limited and precise. In terms of legislative history, as originally enacted, the provision in question permitted a public body to enter into an executive session to discuss:
"...the medical, financial, credit or employment history of any person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of any person or corporation..."
Under the language quoted above, public bodies often convened executive sessions to discuss matters that dealt with "personnel" generally, tangentially, or in relation to policy concerns.
However, the Committee consistently advised that the provision was intended largely to
protect privacy and not to shield matters of policy under the guise of privacy.
To attempt to clarify the Law, the Committee recommended a series of amendments
to the Open Meetings Law, several of which became effective on October 1, 1979. The
recommendation made by the Committee regarding §105(1)(f) was enacted and states that
a public body may enter into 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..." (emphasis added).
Due to the insertion of the term "particular" in §105(1)(f), I believe that a discussion of
"personnel" may be considered in an executive session only when the subject involves a
particular person or persons, and only when at least one of the topics listed in §105(1)(f) is
It has been advised that a motion describing the subject to be discussed as "personnel"
is inadequate, and that the motion should be based upon the specific language of §105(1)(f). For instance, a proper motion might be: "I move to enter into an executive session to discuss the employment history of a particular person (or persons)". Such a motion would not in my opinion have to identify the person or persons who may be the subject of a discussion. By means of the kind of motion suggested above, members of a public body and others in attendance would have the ability to know that there is a proper basis for entry into an executive session. Absent such detail, neither the members nor others may be able to determine whether the subject may properly be considered behind closed doors.It is noted that the Appellate Division has confirmed the advice rendered by this office.
In discussing §105(1)(f) in relation to a matter involving the establishment and functions of
a position, the Court stated that:
"...the public body must identify the subject matter to be
discussed (See, Public Officers Law § 105 ), and it is
apparent that this must be accomplished with some degree of
particularity, i.e., merely reciting the statutory language is insufficient (see, Daily Gazette Co. v Town Bd., Town of Cobleskill, 111 Misc 2d 303, 304-305). Additionally, the topics discussed during the executive session must remain within the exceptions enumerated in the statute (see generally, Matter of Plattsburgh Publ. Co., Div. of Ottaway Newspapers v City of Plattsburgh, 185 AD2d §18), and these exceptions, in turn, 'must be narrowly crutinized, lest the article's clear mandate be thwarted by thinly veiled references to the areas delineated thereunder' (Weatherwax v Town of Stony Point, 97 AD2d 840, 841, quoting Daily Gazette Co. v Town Bd., Town of Cobleskill, supra, at 304; see, Matter of Orange
County Publs., Div. of Ottaway Newspapers v County of Orange, 120 AD2d 596, lv dismissed 68 NY 2d 807).
"Applying these principles to the matter before us, it is
apparent that the Board's stated purpose for entering into
executive session, to wit, the discussion of a 'personnel issue',
does not satisfy the requirements of Public Officers Law § 105 (1) (f). The statute itself requires, with respect to personnel matters, that the discussion involve the 'employment history of a particular person" (id. [emphasis supplied]). Although this does not mandate that the individual in question be identified by name, it does require that any motion to enter into executive session describe with some detail the nature of the proposed discussion (see, State Comm on Open Govt Adv Opn dated Apr. 6, 1993), and we reject respondents' assertion that the Board's reference to a 'personnel issue' is the functional equivalent of identifying 'a particular person'" [Gordon v. Village of Monticello, 620 NY 2d 573, 575; 207 AD 2d 55 (1994)].
Based on the foregoing, a proper motion might be: "I move to enter into an executive session to discuss the employment history of a particular person (or persons)". Such a motion would not in my opinion have to identify the person or persons who may be the subject of a discussion [see Doolittle v. Board of Education, Supreme Court, Chemung County, July 21, 1981; also Becker v. Town of Roxbury, Supreme Court, Chemung County, April 1, 1983].
By means of the kind of motion suggested above, members of a public body and others in
attendance would have the ability to know that there is a proper basis for entry into an
executive session. Absent such detail, neither the members nor others may be able to determine whether the subject may properly be considered behind closed doors.
Similarly, with respect to "negotiations", the only ground for entry into executive session that mentions that term is §105(1)(e). That provision permits a public body to conduct an executive session to discuss "collective negotiations pursuant to article fourteen of the civil service law." Article 14 of the Civil Service Law is commonly known as the"Taylor Law", which pertains to the relationship between public employers and public employee unions. As such, §105(1)(e) permits a public body to hold executive sessions to discuss collective bargaining negotiations with a public employee union.
In terms of a motion to enter into an executive session held pursuant to §105(1)(e), it has been held that:
"Concerning 'negotiations', Public Officers Law section
100[e] permits a public body to enter into executive session
to discuss collective negotiations under Article 14 of the Civil
Service Law. As the term 'negotiations' can cover a multitude of areas, we believe that the public body should make it clear that the negotiations to be discussed in executive session
involve Article 14 of the Civil Service Law" [Doolittle, supra].
A proper motion might be: "I move to enter into executive session to discuss the collective
bargaining negotiations involving the teachers' union."
I hope that I have been of assistance. Should additional questions arise, please free to call me.
Robert J. Freeman