July 7, 1999

Ms. Mary Ann Durantini
7236 Kendall Drive East
E. Syracuse, NY 13057

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
correspondence.

Dear Ms. Durantini:

I have received your letter of June 2, as well as the materials attached to it. You have
sought an opinion concerning various events and practices relating to the implementation of
the Open Meetings Law by the Board of Education and Superintendent of the East Syracuse-Minoa Central School District.

You referred initially to "an unposted meeting [held] solely to go into Executive Session and discuss the case of a Board member accused of threatening a coach." In this regard, even if the only topic to be considered could validly have been discussed during an executive session, I believe that the Board was required to provide notice in accordance with §104 of the Open Meetings Law. That provision states that:

"1. Public notice of the time and place of a meeting scheduled at least one week prior thereto shall be given to the news media and shall be conspicuously posted in one or more
designated public locations at least seventy-two hours before each meeting.

2. Public notice of the time and place of every other meeting shall be given, to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a reasonable time prior thereto.

3. The public notice provided for by this section shall not be construed to require publication as a legal notice."

Stated differently, if a meeting is scheduled at least a week in advance, notice of the time and place must be given to the news media and to the public by means of posting in one or more designated public locations, not less than seventy-two hours prior to the meeting. If a
meeting is scheduled less than a week an advance, again, notice of the time and place must
be given to the news media and posted in the same manner as described above, "to the extent practicable", at a reasonable time prior to the meeting. Although the Open Meetings Law does not make reference to "special" or "emergency" meetings, if, for example, there is a need to convene quickly, the notice requirements can generally be met by telephoning the local news media and by posting notice in one or more designated locations.

It is unclear on the basis of the materials whether the Board voted during the executive session referenced above. Here I point out that, as 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. In my view, based on its nature, the action should have been taken in public.

I note that in an "administrative memorandum" including agenda items for a meeting, an executive session was scheduled to discuss "personnel." As you may be aware, 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..."

Based on the foregoing, it has been consistently advised that a public body, in a technical
sense, 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[1] provides that a public body cannot schedule an executive session in advance of the open meeting. Section 100[1] 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, technically, it cannot be known in advance of that vote that the motion will indeed be approved. However, as an alternative method of achieving the desired result that would comply with the letter of the law, rather than scheduling an executive session, the Superintendent or the Board on its agenda or notice of a meeting could refer to or schedule a motion to enter into executive session to discuss certain subjects.

Further, throughout the materials and your comments, the term "personnel" is used or cited frequently. In this regard, the term "personnel" does not appear in the Open Meetings Law, and that law does not forbid a public body from discussing personnel issues in public.

Moreover, there are many personnel related issues that must be discussed in public. In short, I believe that the term is overused and misleading.

By way of background, 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
considered.

When issues involve the budget, it is possible that "personnel" may be impacted.
However, those issues typically involve resources, needs and the allocation of public monies, rather than the performance of a particular employee. When that is so, even though the issue might involve personnel, there would be no basis for entry into executive session. If the issue pertains to the creation, retention or elimination of a position, again, the matter should be discussed in public, for it would not involve a particular person in terms of his or her performance, but rather the need or ability to carry out a certain function or meet a certain need.

Similarly, discussions regarding the election of officers generally do not fall within any
of the grounds for entry into executive session. Although the discussion and election of
officers involves consideration of particular individuals, it is unlikely that any of the specific
subjects included within §105(1)(f) would be applicable in conjunction with deliberations
involving the selection of school board officers. In short, while "matters leading to" certain
actions relating to specific persons may be discussed during executive sessions, matters
leading to the election of officers is not ordinarily among them.

Because the use of the term "personnel" is imprecise, 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.

Further, 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 [1]), 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)] It is emphasized that there is no provision of law that generally requires personnel records be kept confidential or that discussions involving personnel be considered only in executive session or kept private. Both the Open Meetings Law and the Freedom of Information Law are permissive. While the Open Meetings Law authorizes public bodies to conduct executive sessions in circumstances described in paragraphs (a) through (h) of §105(1), there is no requirement that an executive session be held even though a public body has right to do so. Further, the introductory language of §105(1), which prescribes a procedure that must be accomplished before an executive session may be held, clearly indicates that a public body "may" conduct an executive session only after having completed that procedure. If, for example, a motion is made to conduct an executive session for a valid reason, and the motion is not carried, the public body could either discuss the issue in public, or table the matter for discussion in the future. Similarly, although the Freedom of Information Law permits an agency to withhold records in accordance with the grounds for denial, it has been held by the Court of Appeals, the state's highest court, that the exceptions are permissive rather than mandatory, and that an agency may choose to disclose records even though the authority to withhold exists [Capital Newspapers v. Burns], 67 NY 2d 562, 567 (1986)].

Even when information might have been obtained during an executive session properly
held or from records marked "confidential", I note that the term "confidential" in my view has a narrow and precise technical meaning. For records or information to be validly
characterized as confidential, I believe that such a claim must be based upon a statute that
specifically confers or requires confidentiality.

For instance, if a discussion by a board of education concerns a record pertaining to
a particular student (i.e., in the case of consideration of disciplinary action, an educational
program, an award, etc.), the discussion would have to occur in private and the record would have to be withheld insofar as public discussion or disclosure would identify the student. As you may be aware, the Family Educational Rights and Privacy Act (20 USC §1232g) generally prohibits an educational agency from disclosing education records or information derived from those records that are identifiable to a student, unless the parents of the student consent to disclosure. In the context of the Open Meetings Law, a discussion concerning a student would constitute a matter made confidential by federal law and would be exempted from the coverage of that statute [see Open Meetings Law, §108(3)]. In the context of the Freedom of Information Law, an education record would be specifically exempted from disclosure by statute in accordance with §87(2)(a). In both contexts, I believe that a board of education, its members and school district employees would be prohibited from disclosing, because a statute requires confidentiality. Again, however, no statute of which I am aware would confer or require confidentiality with respect to the matters described in your correspondence.

In a case in which the issue was whether discussions occurring during an executive session held by a school board could be considered "privileged", it was held that "there is no statutory provision that describes the matter dealt with at such a session as confidential or
which in any way restricts the participants from disclosing what took place" (Runyon v. Board of Education, West Hempstead Union Free School District No. 27, Supreme Court, Nassau County, January 29, 1987).

While there may be no prohibition against disclosure of the information acquired during executive sessions or records that could be withheld, the foregoing is not intended to suggest such disclosures would be uniformly appropriate or ethical. Obviously, the purpose
of an executive session is to enable members of public bodies to deliberate, to speak freely
and to develop strategies in situations in which some degree of secrecy is permitted.
Similarly, the grounds for withholding records under the Freedom of Information Law relate
in most instances to the ability to prevent some sort of harm. In both cases, inappropriate
disclosures could work against the interests of a public body as a whole and the public
generally.

Also on the subject of "personnel", you wrote that the Superintendent:

"...refused to let residents speak or ask questions regarding the recent budget vote and Board member election. He, however, stood up to defend a Board member by name who sent out re-election campaign material to the parents of Special Education students in the district (see enclosed). Following the completion of the Board's regular business, the Board went into executive session to discuss ‘personnel' issues that only certain Board members were previously informed of. During the executive session, Dr. Afton made Board members leave the session if any of the topics discussed involved that particular Board member or a spouse. This pertained to three Board members that night and the members have not been
informed of what took place or was decided in their absence."

In conjunction with the foregoing, first, §105(2) of the Open Meetings Law states that:

"Attendance at an executive session shall be permitted to any member of the public body and any other persons authorized by the public body."

Based on the foregoing, the Superintendent would have had no authority to have "made
Board members leave the session"; on the contrary, every member of the Board has the right to attend every executive session.

Second, while the Open Meetings Law clearly provides the public with the right "to
observe the performance of public officials and attend and listen to the deliberations and
decisions that go into the making of public policy" (see Open Meetings Law, §100), the Law is silent with respect to public participation. Consequently, by means of example, if a public body does not want to answer questions or permit the public to speak or otherwise participate at its meetings, I do not believe that it would be obliged to do so. On the other hand, a public body may choose to answer questions and permit public participation, and many do so. When a public body does permit the public to speak, I believe that it should do so based upon reasonable rules that treat members of the public equally.

Although public bodies have the right to adopt rules to govern their own proceedings
(see e.g., Education Law, §1709), the courts have found in a variety of contexts that such
rules must be reasonable. For example, although a board of education may "adopt by laws
and rules for its government and operations", in a case in which a board's rule prohibited the
use of tape recorders at its meetings, the Appellate Division found that the rule was unreasonable, stating that the authority to adopt rules "is not unbridled" and that "unreasonable rules will not be sanctioned" [see Mitchell v. Garden City Union Free School
District, 113 AD 2d 924, 925 (1985)]. Similarly, if by rule, a public body chose to permit
certain citizens to address it for ten minutes while permitting others to address it for three,
or not at all, such a rule, in my view, would be unreasonable.

With regard to the information that you offered, there are federal court decisions indicating that if commentary is permitted within a certain subject area, negative commentary in the same area cannot be prohibited.

It has been held by the United States Supreme Court that a school board meeting in which the public may speak is a "limited" public forum, and that limited public fora involve"public property which the State has opened for use by the public as a place for expressive activity" [Perry Education Association v. Perry Local Educators' Association, 460 US 37, 103. S.Ct. 954 (1939); also see Baca v. Moreno Valley Unified School District, 936 F. Supp.
719 (1996)]. In Baca, a federal court invalidated a bylaw that "allows expression of two
points of view (laudatory and neutral) while prohibiting a different point of view (negatively
critical) on a particular subject matter (District employees' conduct or performance)" (id.,
730). That prohibition "engenders discussion artificially geared toward praising (and maintaining) the status quo, thereby foreclosing meaningful public dialogue and ultimately,
dynamic political change" [Leventhal v. Vista Unified School District, 973 F.Supp. 951, 960 (1997)]. In a decision rendered by the United States District Court, Eastern District of New York (1997 WL588876 E.D.N.Y.), Schuloff, v. Murphy, it was stated that:

"In a traditional public forum, like a street or park, the government may enforce a content-based exclusion only if it is necessary to serve a compelling state interest and is narrowly drawn to achieve that end. Perry Educ. Ass'n., 460 U.S. at 45. A designated or ‘limited' public forum is public property ‘that the state has opened for use by the public as a place for expressive activity.' Id. So long as the government retains the facility open for speech, it is bound by the same standards that apply to a traditional public forum. Thus, any content-based prohibition must be narrowly drawn to effectuate a compelling state interest. Id. at 46."

The court in Schuloff determined that a "compelling state interest" involved the ability to protect students' privacy in an effort to comply with the Family Educational Rights Privacy Act, and that expressions of opinions concerning "the shortcomings" of a law school professor could not be restrained.

In short, if the Superintendent "defends" a Board member or employee during an open meeting, based on the decisions cited above, I do not believe that there can be a valid restriction on comments, whether neutral, positive or negative, regarding the same or other
Board members or employees.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt
cc: Board of Education
Dennis Afton