September 15, 1999
Mr. Kevin Mazuzan
292 Wall Street
Kingston, NY 12401
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. Mazuzan:
I have received your letter of August 19 and the news article attached to it. You have
sought my views concerning the propriety of an executive session held by a committee of the City of Kingston Common Council to consider a parking plan. The article indicates that the executive session was held due to the "possible impact on city personnel..."
From my perspective, there was 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 upon a presumption of openness. Stated differently, meetings of public bodies must be conducted open to the public, unless there is a basis for entry into executive session. Moreover, the Law 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 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
Second, although it is used frequently, the term "personnel" appears nowhere in the
Open Meetings Law. It is true that one of the grounds for entry into executive session often
relates to personnel matters. From my perspective, however, 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
When a discussion concerns matters of policy, such as the manner in which public
money will be expended or allocated, the functions of a department or perhaps the creation
or elimination of positions, I do not believe that §105(1)(f) could be asserted, even though
the discussion may relate to "personnel". For example, if a discussion of possible layoffs
relates to positions and whether those positions should be retained or abolished, the
discussion would involve the means by which public monies would be allocated. In the
circumstance that you described, the issue would not have focused on any "particular person", nor would it have involved the subjects relating to a particular person delineated in §105 (1)(f). In short, in order to enter into an executive session pursuant to §105(1)(f), I believe that the discussion must focus on a particular person (or persons) in relation to a topic listed in that provision. As stated judicially, "it would seem that under the statute matters related to personnel generally or to personnel policy should be discussed in public for such matters do not deal with any particular person" (Doolittle v. Board of Education, Supreme Court, Chemung County, October 20, 1981).
It has been advised that a motion describing the subject to be discussed as "personnel"
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 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; 207 AD 2d 55 (1994)].
I hope that I have been of assistance.
Robert J. Freeman
cc: Common Council
Law and Rule Committee