From:   Mercer, Janet (DOS)
Sent:    Monday, January 25, 2010 3:32 PM
Subject:        RE: Attendance at Executive Sessions


            I have received your letter in which you asked who may attend executive sessions. 

            In this regard, pertinent to your question is §105(2) of the Open Meetings Law, which provides that: “Attendance at an executive session shall be permitted to any member of the public body and any other persons authorized by the public body.”  Therefore, the only people who have the right to attend executive sessions are the members of the public body, i.e., a town board conducting the executive session. A public body may, however, authorize others to attend an executive session.  While the Open Meetings Law does not describe the criteria that should be used to determine which persons other than members of a public body might properly attend an executive session, I believe that every law, including the Open Meetings Law, should be carried out in a manner that gives reasonable effect to its intent.  Typically, those persons other than members of public bodies who are authorized to attend are the clerk, the public body’s attorney, the superintendent in the case of a board of education, or a person who has some special knowledge, expertise or performs a function that relates to the subject of the executive session.

            If there is a dispute among the members concerning the attendance of a person other than a member of the Town Board at an executive session, I believe that the Board could resolve the matter by adopting or rejecting a motion by a member to permit or reject the attendance by a non-member at an executive session.

            I note that in a judicial decision, Jae v. Board of Education of Pelham Union Free School District (Supreme Court, Westchester County, July 28, 2004), it was held that there is no requirement that a motion be made to authorize the presence of persons other than members of a public body at an executive session.  The decision states that:

“..the Petitioners’ contention that the Board of Education must specifically identify any individuals invited to attend executive sessions of the Board, is not supported by law.  The Public Officers Law specifically prescribes the manner and method by as well as the purposes for which a public body may enter executive session.  The requirements include a motion on the public record; ‘...identifying the general area or areas of the subject or subjects to be considered,...’ (Public Officers Law §105[1]).  This section of the law specifically does not require that any individuals invited to attend the meeting be set forth in the motion to go into executive session.  The language set forth above is also in sharp contrast to the language describing who may attend executive sessions which simply states: ‘[a]ttendance at an executive session shall be permitted to any member of the public body and any other persons authorized by the public body.’  (Public Officers Law §105[2]).  If the legislature had intended that the identities of those attending executive sessions be memorialized in  the public records of the public body’s meetings, the legislature wuld [sic] have included the necessary language in sub-section 1 of the statute or sub-section 2 of the statute would have included language similar to that contained in sub-section1.  Therefore, the Court agrees with the Respondents that they are not obligated to include the identities of all individuals attending executive sessions of the Board of Education in the motion authorizing the executive session.”

            I hope that I have been of assistance.

Janet Mercer
Committee on Open Government
One Commerce Plaza
99 Washington Ave., Suite 650
Albany, NY 12231
(518) 474-2518
(518) 474-1927 - Fax