April 19, 1999
Mr. William E. Boeddener
12 Saxon Court
Glen Cove, NY 11542
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. Boeddener:
I have received your letter of March 26 and the materials attached to it. You have
questioned the propriety of an executive session held by the Glen Cove School District Board of Education at a Board member's home to discuss "personnel."
In this regard, I offer the following comments.
First, I note that 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. As you may be aware, 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.
Second, the Open Meetings Law does not specify where a public body must conduct
its meetings. However, the Law does provide direction concerning the site of meetings.
Section 103(b) of the Law states that:
"Public bodies shall make or cause to be made all reasonable efforts to ensure that meetings are held in facilities that permit barrier-free physical access to the physically handicapped, as defined in subdivision five of section fifty of the public buildings law."
Based upon the language quoted above, the Open Meetings Law, in my opinion,
imposed no obligation upon a public body to construct a new facility or to renovate an
existing facility to permit barrier-free access to physically handicapped persons. However,
I believe that the law does impose a responsibility upon a public body to make "all reasonable
efforts" to ensure that meetings are held in facilities that permit barrier-free access to
physically handicapped persons. Therefore, if, for example, the Board has the capacity to
hold its meetings in a first floor room that is accessible to handicapped persons rather than
a second floor room, I believe that the meetings should be held in the room that is most likely to accommodate the needs of people with handicapping conditions.
From my perspective, a member's home would generally not be an appropriate
location for a meeting of a public body. Aside from the issue of barrier-free access to
physically handicapped persons, a home is not a public facility, and many have suggested that
entry into a home to attend a meeting involves a sense of intrusion or intimidation. In my
view, every law, including the Open Meetings Law, should be implemented in a manner that
gives effect to its intent. Holding a meeting at a member's home would, in my opinion, be
unreasonable and inconsistent with the intent of the law.
Third, as indicated earlier, 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 total membership before such a session may validly be held.
Although it is used frequently, the term "personnel" appears nowhere in the Open Meetings
Law. While one of the grounds for entry into executive session often relates to personnel
matters, from my perspective, the term is overused and is frequently cited in a manner that
is misleading or causes unnecessary confusion. To be sure, some issues involving "personnel" may be properly considered in an executive session; others, in my view, cannot. Further, certain matters that have nothing to do with personnel may be discussed in private under the provision that is ordinarily cited to discuss personnel.
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"
or "specific personnel matters" 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 scrutinized, 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;
207AD 2d 55, 58 (1994)]
In an effort to enhance compliance with and understanding of the Open Meetings Law, copies of this opinion will be forwarded to the Board of Education and its attorney.
I hope that I have been of assistance.
Robert J. Freeman
cc: Board of Education
Robert E. Sapir