June 22, 2010

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

            We have received your letter in which you inquired about the propriety of an executive session held by the Mid York Library System’s Board of Trustees and the Boards vote, immediately thereafter, authorizing an expenditure of up to $10,000.

            In this regard, we offer the following comments.

            Minutes of the meeting indicate the Board resolved to “declare” an executive session “to discuss Darlene’s employment history, which may lead to decisions about her future employment with MYLS.” This, in your opinion, was not an accurate description of the motion. You wrote that after two hours, the Board came out of executive session, and a motion was made to “authorize Kelly Rose…to enter into negotiation with a facilitator recommended to the board by personnel at the New York State Library, incurring expenses up to the amount of $10,000.” This motion was approved following “a recommendation from Executive Session.”

            You added that we discussed the matter, and that it was advised, in your words, that “the resolution was so non-specific that it constituted a violation of the Open meetings Law.” Please note that, as a matter of policy and practice, because this officer is not a court, we do not characterize situations as “violations” of law.
With respect to the accuracy of the minutes, §106(1) of the Open Meetings Law pertains to minutes of open meetings and requires that:

"1. Minutes shall be taken at all open meetings of a public body which shall consist of a record or summary of all motions, proposals, resolutions and any other matter formally voted upon and the vote thereon.

2. Minutes shall be taken at executive sessions of any action that is taken by formal vote which shall consist of a record or summary of the final determination of such action, and the date and vote thereon; provided, however, that such summary need not include any matter which is not required to be made public by the freedom of information law as added by article six of this chapter.

3. Minutes of meetings of all public bodies shall be available to the public in accordance with the provisions of the freedom of information law within two weeks from the date of such meeting except that minutes taken pursuant to subdivision two hereof shall be available to the public within one week from the date of the executive session."

From our perspective, every law, including the Open Meetings Law, must be implemented in a manner that gives reasonable effect to its intent. Based on that presumption, we believe that minutes must be sufficiently descriptive to enable the public and others (i.e., future Trustees), upon their preparation and review perhaps years later, to ascertain the nature of action taken by an entity subject to the Open Meetings Law, such as the Board of Trustees. Most importantly, minutes must be accurate.

            In our opinion, in consideration of the substance of the authorization “to enter into negotiation with a facilitator”, the minutes do not include sufficient information to ascertain the nature of the Board’s discussion. At a minimum, we believe that the minutes should clearly have reflected the intent of the Board. We note that it has been held that a "bare bones" resolution referenced in minutes is inadequate to comply with the Open Meetings Law [see Mitzner v. Goshen Central School Dist. Board of Ed. [Supreme Ct., Orange Cty. April 15, 1993].

            While it appears from the minutes that the basis for entry into executive session was appropriate, it also appears that the discussion was not limited to the matter described.

            We hope that we have been of assistance.



                                                                                                Camille S. Jobin-Davis
                                                                                                Assistant Director