oml 2495



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 :

I have received your letter of September 28 and the materials attached to it.

You referred to a grievance filed last year by a music teacher who is the former pep band director and President of the Delaware Valley Central School District Faculty Association. You indicated that you were informed that the teacher "claimed to have made a verbal agreement with a previous Superintendent which allowed him to end his duties as Pep
Band Director at half time." The teacher also claimed to have "a proprietary interest in the
Pep Band Director position." You wrote that he contended that "this was a previously
established practice and should now be considered the rule." Although the claim was initially
denied and a new pep band director had been hired for the 1997 season, at an executive
session recently held, a new superintendent was directed to execute a stipulation of
settlement. The stipulation specifies that the grievance was withdrawn, that the teacher was
reinstated as pep band director for the current school year and that the pep band "shall be
required to stay no longer than the commencement of half-time of any game."

You wrote that the issue "has never been discussed or presented in any manner in any
public meeting of the school board." Further, you were informed that "there are no Board
of Education minutes regarding the ratification" of the stipulation of agreement. You have
asked whether "this procedure has violated the open meetings laws..."

In this regard, it is emphasized that the function of the Committee on Open Government involves providing advice and opinions. The Committee cannot make a determination, and this office never concludes that a "violation" of law might have occurred.

Based upon the information that you presented, it is questionable in my view whether or the extent to which the issue could justifiably have been considered during an executive session. It appears that the only potential basis for entry into an executive session would have been §105(1)(f). That provision permits a public body to conduct an executive session to discuss:

"the medical, financial, creditor 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..."

When one or more of the topics appearing in §105(1)(f) pertains to a particular person, an
executive session may properly be held. In this instance, if my understanding of the situation
is accurate, the issue primarily involved the functions and the duties inherent in the position
of pep band director. If that is so and if consideration of the matter involved the functions
and duties of any person who serves in the position of pep band director, the matter would
not have focused on any particular person, but rather upon the position. In that circumstance, there would have been no basis, in my view, for consideration of the matter in executive session.

On the other hand, insofar as an issue involves how well or poorly an individual has
performed his or her duties, for example, the focus would be on a particular person, and there would in my opinion be a proper basis for conducting an executive session.

Lastly, it appears that action to ratify or approve the settlement agreement should have been taken by the Board of Education. If that is so, I believe that any such action should have been in public and memorialized in minutes. I note that as a general rule, a public body
may take action during a properly convened executive session [see Open Meetings Law,
§105(1)]. In the case of most public bodies, if action is taken during an executive session,
minutes reflective of the action, the date and the vote must be recorded in minutes pursuant
to §106(2) of the Law. If no action is taken, there is no requirement that minutes of the
executive session be prepared. Various interpretations of the Education Law, §1708(3),
however, indicate that, except in situations in which action during a closed session is
permitted or required by statute, a school board cannot take action during an executive
session [see United Teachers of Northport v. Northport Union Free School District, 50 AD 2d 897 (1975); Kursch et al. v. Board of Education, Union Free School District #1, Town of North Hempstead, Nassau County, 7 AD 2d 922 (1959); Sanna v. Lindenhurst, 107 Misc. 2d 267, modified 85 AD 2d 157, aff'd 58 NY 2d 626 (1982)]. Stated differently, based upon judicial interpretations of the Education Law, a school board generally cannot vote during an executive session, except in rare circumstances in which a statute permits or requires such a vote.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director

cc: Board of Education