August 23, 1999

Mr. Robert S. Thompson
Massapequa School Board Trustee
208 Fillmore Street
Massapequa Park, NY 11762-1512

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. Thompson:

I have received your letter of July 26. In your capacity as a member of the Massapequa School District Board of Education, you have raised a variety of issues relating to the Open Meetings Law.

First, you indicated that you read that minutes of executive session are required to be prepared and made available within a certain time, but that you " have never seen any executive board minutes taken, much less made available to the BOE or the public."

In this regard, 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. Since no vote or action may be taken during an executive session, there would be no obligation on the part of a board of education to prepare minutes of its executive sessions.

Next, you referred to incidents in which you asked that an executive session be held and that an item be placed on an agenda, but in which the President of the Board "vetoed" your requests, "indicating that she and two other board members (three out of five) had decided" against them.

With specific respect to the Open Meetings Law, as you may be aware, that statute requires that a procedure be accomplished, during an open meeting, before a public body may enter into an executive session. Section 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 total 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.

I note that a motion to enter into executive session must be made in public, and that the Board's action on that motion, to accept or reject it, must also occur in public. Similarly,
in my view, the Board cannot validly take action to reject your request to place an item on
the agenda except at a meeting of the Board.

As a general matter, a public body is empowered to act only by means of an affirmative vote of a majority of its total membership taken at a meeting. Additionally, in order to constitute a valid meeting, I believe that all of the members of a public body must be
given reasonable notice of the meeting. Pertinent is §41 of the General Construction Law,
which provides guidance concerning quorum and voting requirements. The cited provision
states that:

"Whenever three of more public officers are given any power or authority, or three or more persons are charged with any public duty to be performed or exercised by them jointly or as a board or similar body, a majority of the whole number of such persons or officers, at a meeting duly held at a time fixed by law, or by any by-law duly adopted by such board of body, or at any duly adjourned meeting of such meeting, or at any meeting duly held upon reasonable notice to all of them, shall constitute a quorum and not less than a majority of the whole number may perform and exercise such power, authority or duty. For the purpose of this provision the words 'whole number' shall be construed to mean the total number which the board, commission, body or other group of persons or officers would have were there no vacancies and were none of the persons or officers disqualified from acting."

Based upon the language quoted above, a public body cannot carry out its powers or duties except by means of an affirmative vote of a majority of its total membership taken at a meeting duly held upon reasonable notice to all of the members. Therefore, if, for example, three of five members of a public body meet or purportedly take action without informing the other two, even though the three represent a majority, I do not believe that they could vote or act as or on behalf of the body as a whole; unless all of the members of the body are given reasonable notice of a meeting, the body in my opinion is incapable of performing or exercising its power, authority or duty.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Board of Education