November 17, 1998
Hon. Michael J. Bragman
New York State Assembly
305 South Main Street
North Syracuse, NY 13212
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 Assembly Bragman:
I have received your letter of November 5, which reached this office on November 12.
You referred to questions raised by two trustees of the Village of North Syracuse
relating to compliance with the Open Meetings Law and the authority of the Mayor to bind
the Village in a "disputed purchase" of real property. Having reviewed the materials attached
to your letter, the facts, from my perspective, are somewhat unclear. On the one hand, it may be contended that the Mayor took action to begin the process of purchasing a building with the authorization of the Board of Trustees; on the other, it can also be contended that the Mayor acting unilaterally and without authorization of the Board. The materials do not
provide sufficient information to reach a conclusion on the matter. Nevertheless, I offer the
First, as I understand the situation, the Mayor, a single member of the Board of
Trustees, could not have acted unilaterally without specific direction of the Board of Trustees.
Since the issue involved the purchase of real property, I believe that any action would have
required an affirmative vote of the majority of the membership of the Board of Trustees.
Further, any such vote, to be valid, could only have occurred at a meeting of the Board. If
action was taken by the Mayor without specific authority, should it be challenged in that
circumstance, it is likely in my view that a court would determine that no valid action was taken. I note that §41 of the General Construction Law entitled "Quorum and majority"
indicates that a public body can only take action by means of an affirmative vote of a majority of its total membership taken at a meeting during which a quorum is present.
If it is established that the Mayor acted pursuant to authority conferred by the Board of Trustees, the preceding remarks would be largely irrelevant.
A second issue involves the ability of a public body to take action during an executive
session. In this regard, in general, a public body may vote during an executive session
properly held, unless the vote is to appropriate public monies [see Open Meetings Law,
§105(1)]. In my opinion, if an action represents an allocation or expenditure of funds that
have previously been budgeted, the action would not involve an appropriation, and a vote
could be taken during an executive session. However, if a determination is made to expend
monies that have not been budgeted, i.e., to appropriate new monies, a vote to do so must
occur during an open meeting. That does not appear to have occurred based upon the materials that you provided.
Lastly, as you are likely aware, the Open Meetings Law is based on a presumption of openness. Stated differently, meetings of public bodies must be conducted open to the public, except to the extent that an executive session may properly be conducted in accordance with paragraphs (a) through (h) of §105(1). Pertinent to the matter is §105(1)(h), which authorizes a public body to enter into executive session to discuss:
"the proposed acquisition, sale or lease of real property or the proposed acquisition of securities, or sale or exchange of securities held by such public body, but only when publicity would substantially affect the value thereof."
Insofar as discussions by the Board, if conducted publicly, would have substantially affected
the value of the property under consideration, executive sessions would properly have been
held. It appears that the purchase of the site in question has been a matter of controversy
known to the public for some time. When the public is aware of a possible real property
transaction, including the site of the property, the extent to which executive sessions may
validly be held is questionable; the more that the public is aware of the details of a transaction, the less likely it may be that publicity would substantially affect the value of the property.
Again, due to conflicting points of a view regarding what occurred, I regret that I cannot offer definitive guidance. Nevertheless, I hope that I have been of assistance.
Robert J. Freeman