March 13, 2007

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 correspondence.


            I have received your letter in which you requested a “written decision” concerning the ability of a city council to enter into executive session “for the purposes of ‘collective negotiations pursuant to article fourteen of the Civil Service law’ absent the Council itself being actively involved in current at-the-table bargaining.”

            In this regard, it is noted at the outset that the Committee on Open Government is authorized to provide advice and opinions concerning the Open Meetings Law; it is not empowered to issue a decision that is binding. Nevertheless, I offer the following comments concerning your question.

            The language that you quoted is found in §105(1)(e) of the Open Meetings Law and refers to the “Taylor Law”, which deals with the relationship between public employers, such as the City of Binghamton, and public employee unions. There are few decisions concerning that provision, and I believe that a clear response to your question could only be offered by a court. In my view, however, there are two possible outcomes.

            First, based on its literal terms, if the City Council is discussing collective bargaining negotiations, it appears that it may conduct an executive session even though it may not be involved directly in the negotiations. The provision at issue merely states that an executive session may be held to discuss collective negotiations; it does not refer to a standard based on the effect of public discussion, nor does it limit who may assert the exception.

            Second, on the other hand, it has been held for many years that the Open Meetings Law is be given “a broad and liberal construction” in a manner that fosters the public’s right to obtain information concerning the governmental process [see e.g., Holden v. Cornell University, 80 AD2d 378, 381 (1981)]. That being so, a court might consider the reasons for which the exception was enacted. From my perspective, the primary purpose of the exception is to enable a public body to discuss its collective bargaining strategy in private, so that it or its representatives may engage in fair negotiations, without providing the other party to the negotiations with an unfair advantage. By means of analogy, §105(1)(d) of the Open Meetings Law provides that a public body may enter into executive session to discuss “proposed, pending or current litigation...” Despite the absence of a particular standard or condition that must be met to enter into executive session, it has been held that the purpose of the exception is to enable a public body to discuss its litigation strategy in private, so a not to divulge its strategy to its adversary [see e.g., Concerned Citizens to Review the Jefferson Mall v. Town Board of the Town of Yorktown, 83 AD2d 612, appeal dismissed, 54 NY2d, 957 (1981)].

            In short, due to the absence of judicial direction, I regret that an unequivocal response cannot be offered. However, in my view, the grounds for excluding the public from meetings is based on the general notion that meetings must be held open to the public, except to the extent that public discussion would result in some sort of harm. In this instance, it is suggested that an executive session may properly be held only to the extent that public discussion would in some way adversely affect the negotiations or the financial interests of City taxpayers.

            I hope that I have been of assistance.


                                                                                                Robert J. Freeman
                                                                                                Executive Director


cc: Kenneth J. Frank, Corporation Counsel