October 29, 1999

Mr. Charles Bentley, Sr.
P.O. Box 67
Bentley Way
Petersburgh, NY 12138

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 Board Member Bentley:

I have received your letter of September 15 and the materials attached to it. As a
resident and a member of the Petersburgh Town Board you have described a series of issues and concerns relative to meetings of the Board, your role and your treatment by the Board and its attorney. In an effort to respond to your questions, I offer the following comments.

The initial area of inquiry pertains to notice of special meetings held by the Board. In this regard, the phrase "special meeting" is found in §62(2) of the Town Law, which states
in relevant part that:

"The supervisor of any town may, and upon written request of two members of board shall within ten days, call a special meeting of the town board by giving at least two days notice
in writing to the members of the board of the time when and place where the meeting is to be held".

The provision quoted above pertains to notice given to members of a town board, and the
requirements of that provision are separate from those contained in the Open Meetings Law.

The Open Meetings Law requires that notice be given to the news media and posted
prior to every meeting. Specifically, section 104 of that statute provides 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 in 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. Therefore, 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.

If a written notice was transmitted to the news media and the Town maintains a copy,
that record would, in my view, be clearly accessible under the Freedom of Information Law. If, for example, notice was given by phone, there would be no requirement that proof that such notice was given be recorded.

If you "find out that [meetings] were not publicized", you asked whether you may "give citizens this information without being punished under the law." From my perspective, there would be no law that would either prevent you from disseminating that information or that would serve as a basis for "punishing" you.

Second, with respect to executive sessions held to discuss "personnel", by way of background, 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
executive session.

Although it is used frequently, the term "personnel" appears nowhere in the Open Meetings Law. Although 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.

In my view, a discussion held to criticize or berate you would not fall within the scope
of §105(1)(f). Similarly, if the discussion had related to the "Hud program", as you described the matter, there could have been no basis for conducting an executive session.

Further, 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 [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; 209 AD 2d 55, 58 (1994)].

In short, the characterization of an issue as a "personnel matter" is inadequate, for it fails to enable the public or even members of the Board to know whether subject at hand may
properly be considered during an executive session.

Next, there is no law that prohibits you from disclosing what occurred during an executive session. I point out that the Open Meetings Law is permissive. While that statute 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 the right to do so. Further, the introductory language of §105(1), which prescribes a procedure that must be accomplished before an executive session can 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.

In a case in which the issue was "whether discussions had at an executive session of
a school board are privileged and exempt from disclosure", 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).

In sum, unless a statute specifically prohibits disclosure of certain information or records, I do not believe that statements made during an executive session or information derived from an executive session could be characterized as "confidential" or that there would be a prohibition against disclosure by a person present at the executive session.

This is not to suggest that it would be wise or ethical in every instance to divulge what
transpired during an executive session; rather, I am suggesting that there is no general law
that precludes you from disclosing.

With respect to the enforcement of the Open Meetings Law, §107(1) of the Law states in part that:

"Any aggrieved person shall have standing to enforce the provisions of this article against a public body by the commencement of a proceeding pursuant to article seventy-eight of the civil practice law and rules, and/or an action for declaratory judgment and injunctive relief. In any such action or proceeding, the court shall have the power, in its discretion, upon good cause shown, to declare any action or part thereof taken in violation of this article void in whole or in part."

In addition, subdivision (2) of §107 states that a court may award attorney's fees to the
successful party.

Lastly, "if executive sessions were held for purpose of threatening and intimidating" you, you asked whether there is any legal action that you can take. In my view, the most appropriate action would involve an effort to ensure that the Board complies with the Open Meetings Law and holds executive sessions only when it is clearly legal to do so. As stated by Justice Louis Brandeis more than a century ago: "Sunlight is the best disinfectant." In an effort to enhance compliance with and understanding of the Open Meetings Law, a copy of this opinion will be sent to the Town Board.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Town Board