From: Jobin-Davis, Camille (DOS)
Sent: Wednesday, May 28, 2014 10:54 AM
Subject: Open Meetings Law
This is in response to yours of May 7, 2014, copy attached.
First, I must ask, what was the ground(s) given for entry into executive session on these two
occasions? Hopefully, it was not described as “personnel”. See:
Second, only if the discussion regarding the people chosen to assist the City Manager with his search fell
under one or more of the topics listed in Section 105(1)(f) (set forth in the opinion at the above link)
would the discussion have been appropriate for executive session.
Third, although I cannot make a determination about whether a public body has “violated” the law
because I am not a judge, should someone wish to challenge the Council’s authority to enter into
executive session, it would require a lawsuit filed pursuant to Article 78 of the Civil Practice Law and
Rules. If a judge were to determine that the executive session was held in violation of the Open
Meetings Law, the court could, upon good cause shown, invalidate any action taken during the
executive session, order the City to pay attorney’s fees, and order all members to attend training given
by the Committee on Open Government. The court’s authority to issue these orders is discretionary.
Further, with respect to discussions regarding a police officer’s actions while on the job, please note that
personnel records of police officers, or those used for purposes of evaluating for continued
employment, are “confidential” pursuant to Civil Rights Law section 50-a. When a public body discusses
a matter which is “confidential” pursuant to state or federal law, as in the case here, technically, the
discussion is exempt from the Open Meetings Law pursuant to section 108. Accordingly, and I do not
mean to be overly technical, but should the Council wish to discuss either of the police officers and their
behavior during this incident for purposes of evaluation for continued employment, it is likely not a
discussion that is subject to the Open Meetings Law, and therefore may be held in private. The
following advisory opinion outlines the distinction between executive session material and that which is
exempt due to confidentiality: http://docs.dos.ny.gov/coog/otext/o2448.htm
In direct response to your question regarding the ability to discuss the events that occurred during a call
for service, it is my opinion that disclosure of factual information regarding what occurred while the
officers were on a call would not necessarily contravene the prohibitions in CRL section 50-a. In other
words, in my opinion, as long as the information is limited to the facts and events that transpired, the
Council would not be prohibited from issuing a statement or answering questions, including the status
of the health of the officer who sustained minor injuries.
I hope this is helpful.
Camille S. Jobin-Davis, Esq.
NYS Committee on Open Government
Department of State
99 Washington Avenue, Suite 650
Albany, NY 12231