December 2, 2009

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 wrote that “[q]uestions have arisen recently about whether Common Council committees are permitted to go into executive session during deliberations concerning appointments to city boards, commissions and task forces.”  You have sought clarification of the matter.

            In this regard, first, the Open Meetings Law is applicable to public bodies, and §102(2) of that statute defines the phrase “public body” to include:

"...any entity for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof, or for a public corporation as defined in section sixty-six of the general construction law, or committee or subcommittee or other similar body of such public body."

Based on the foregoing, a governing body, such as the Common Council, clearly is a public body, and in consideration of the last clause in the definition, any committee consisting solely of the members of the Council, in my view, also constitute public bodies required to comply with the Open Meetings Law. 

            Second, §105(1) of the Open Meetings Law requires that a procedure be accomplished, during an open meeting, before an executive session may be held.  That provision 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...”

The ensuing provisions, paragraphs (a) through (h), specify and limit the grounds for entry into executive session. 

            Pertinent to your inquiry is paragraph (f), which authorizes a public body to conduct 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...”

Insofar as the focus of deliberations by the Council or a committee of the Council focus on the appointment of “a particular person” or persons, I believe that an executive session could validly be held.

            Lastly, the Open Meetings Law is permissive; although it may conduct executive sessions in circumstances authorized in §105(1), there is no obligation to do so.  If, for example, a motion to enter into executive session to discuss “a matter leading to the appointment of a particular person” is not carried by a majority vote of the total membership of a public body, that entity may choose to discuss the matter in public.

            I hope that I have been of assistance.



                                                                                                Robert J. Freeman
                                                                                                Executive Director