July 14, 1999


TO: <Jwierc8977@aol.com>

FROM: Robert J. Freeman

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 Ms. DiRienzo:

As you are aware, I have received your correspondence concerning the propriety of an executive session held by the Village of Depew Planning Board. As I understand the matter, the "petitioner", the applicant before the Board, was invited to discuss his application with the Board during the executive session.

If my interpretation of the situation is accurate, there would have been no basis for conducting an executive session. In this regard, I offer the following comments.

First, as a general matter, 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 held . Further, that statute 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.

It would appear that the only pertinent ground for entry in executive session would have been §105(1)(d), which permits a public body to enter into an executive session to discuss "proposed, pending or current litigation". Based on judicial decisions, the scope of the so-called litigation exception is narrow. As stated judicially:

"The purpose of paragraph d is "to enable is to enable a public body to discuss pending litigation privately, without baring its strategy to its adversary through mandatory public meetings' (Matter of Concerned Citizens to Review Jefferson Val. Mall v. Town bd.. Of Town of Yorketown, 83 AD d. 612, 613, 441 N.S. d. 292). The belief of the town's attorney that a decision adverse to petitioner 'would almost certainly lead to litigation' does not justify the conducting of this public business in an executive session. To accept this argument would be to accept the view that any public body could bar the public from its meetings simply be expressing the fear that litigation may result from actions taken therein. Such a view would be contrary to both the letter and the spirit of the exception" [Weatherwise v. Town of Stony Point, 97 AD d. 840, 841 (1983)].

In view of the foregoing, the exception is intended to permit a public body to discuss its
litigation strategy behind closed doors, so as not to divulge its strategy to its adversary, who
may be present with other members of the public at the meeting. I note, too, that the
Concerned Citizens decision cited in Weatherwax involved a situation in which a town board involved in litigation met with its adversary in an executive session to discuss a settlement. The court determined that there was no basis for entry into executive session; the ability of the board to conduct a closed session ended when the adversary was permitted to attend. In the context of the situation that you described, even if there would otherwise have been a basis for entry into executive session, and that does not appear to be so, once the petitioner was invited to join the Board, the Board, in my view, would have lost its authority to conduct a private session.

Second, you referred to an opinion prepared by this office upon which an attorney for the Village apparently relied as a means of justifying an executive session (OML AO 2926).
That opinion dealt with the status of committees and advisory bodies under the Open Meetings Law. In this instance, the Planning Board is a statutory creation (see Village Law,
§7-718) that carries out functions imposed by law. From my perspective, it is clearly a
"public body" that must comply with the Open Meetings Law in all respects.

Section 102(2) of the Open Meetings Law defines the phrase "public body" to mean:

"...any entity for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or
for an agency or department thereof, or for a public corporation as defined in section sixty-six of the general construction law, or committee or subcommittee or other similar body of such public body."

Judicial decisions indicate generally that advisory bodies having no power to take final action, other than committees consisting solely of members of public bodies, fall outside the
scope of the Open Meetings Law. As stated in those decisions: "it has long been held that
the mere giving of advice, even about governmental matters is not itself a governmental
function" [Goodson-Todman Enterprises, Ltd. v. Town Board of Milan, 542 NYS 2d 373,
374, 151 AD 2d 642 (1989); Poughkeepsie Newspapers v. Mayor's Intergovernmental Task Force, 145 AD 2d 65, 67 (1989); see also New York Public Interest Research Group v. Governor's Advisory Commission, 507 NYS 2d 798, aff'd with no opinion, 135 AD 2d 1149, motion for leave to appeal denied, 71 NY 2d 964 (1988)].

As suggested earlier, the Planning Board clearly performs necessary and integral functions concerning use of land in the Village, particularly in conjunction with §7-722 of the Village Law.

In my opinion, the conclusion that a planning board is a public body can be reached by viewing the definition of "public body" in terms of its components. A planning board is an entity consisting of more than two members; it is required in my view to conduct its business subject to quorum requirements (see General Construction Law, §41); and, based upon the preceding commentary, it conducts public business and performs a governmental function for a public corporation, a village. In sum, based on the rationale offered in preceding analysis, it is my view that a planning board is clearly a "public body" required to comply with the Open Meetings Law.

I hope that I have been of assistance.


cc: Planning Board