April 25, 2003



FROM: Robert J. Freeman, Executive Director

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.


As you are aware, I have received your communication in which you asked whether executive sessions may properly be held by a committee of the Yates County Legislature to consider certain matters.

According to your letter, the committee was created to review vacancies as they occur,
consider whether the vacancies should be filled, and to offer recommendations to the full
Legislature.. You referred specifically to issues involving the District Attorney and the Sheriff and wrote that:

"The discussion with the District Attorney involved an assistant DA and the fact that the DA stated that they would plea bargain more cases including the kinds of cases as well as the possibility of dismissal because of the delays in cases. The Sheriff discussion
involved discussions about not having personnel on duty at specific times of day."

From my perspective, the only ground for entry into executive session that would be relevant in the situations that you described is §105(1)(a). That provision states that a public body may conduct an executive session to consider "matters which will imperil the public safety if disclosed." As I understand this issues, an executive session be proper with respect to one, but difficult to justify regarding the other.

The first situation concerning the position of assistant district attorney appears to pertain to the ability of staff to carry out functions in relation to matters in which persons are or have been arrested and/or in custody of law enforcement officials. While the inability to fill a vacancy might result in a greater number of cases being plea bargained or perhaps dismissed, it seems unlikely that problems of that nature if discussed in public would "imperil the public safety." With respect to the second situation, since it involves coverage by law enforcement officials, it appears that an executive session could properly be held. If potential lawbreakers can gain the ability to know when or whether personnel are unavailable or off duty, they could tailor their activities in a manner that would circumvent effective law enforcement. If that may be the result of public consideration of the issue, I believe that §105(1)(a) could justifiably be asserted.

I hope that I have been of assistance. If you would like to discuss the matter, please do not hesitate to contact me.