OML AO 5610 March 25, 2019
FROM: Robert J. Freeman, Executive Director
RE: Advisory Opinion
CC: Board of Education (firstname.lastname@example.org)
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, except as otherwise indicated.
I have received your letter and the materials relating to it. You have raised a variety of issues concerning compliance with law by the Hempstead Public School District and its Board of Education.
First, you referred to "20 Special Meetings" held from July to December of last year and indicated that the Board during those meetings "immediately convenes to executive session to discuss 'personnel and legal matters'". There is no reference in the Open Meetings Law (OML) to special meetings, and although the phrase "special meeting" appears in sections 2005 to 2008 of the Education Law, it does not appear that the gatherings at issue were special meetings as that phrase is described in those provisions.
The use of the terms "personnel" and "legal matters" are inadequate in describing the bases for entry into executive session. The subjects that may properly be considered in executive session are specified in paragraphs (a) through (h) of §105(1) of the Open Meetings Law. Because those subjects are limited, a public body cannot conduct an executive session to discuss the subject of its choice. In addition, the motion must be specific enough so that the public is informed that the topic or topics for discussion fall under one of the permitted options.For example, the provision that deals with litigation is §105(1)(d), which permits a public body to enter into an executive session to discuss "proposed, pending or current litigation". In construing the language quoted above, it has been held that:
"The purpose of paragraph d is "to enable a public body to discuss pending litigation privately, without baring its strategy to its adversary through mandatory public meetings' (Matter of Concerned Citizens to Review Jefferson Val. Mall v. Town Bd. Of Town of Yorktown, 83 AD 2d 612, 613, 441 NYS 2d 292). The belief of the town's attorney that a decision adverse to petitioner 'would almost certainly lead to litigation' does not justify the conducting of this public business in an executive session. To accept this argument would be to accept the view that any public body could bar the public from its meetings simply by expressing the fear that litigation may result from actions taken therein. Such a view would be contrary to both the letter and the spirit of the exception" [Weatherwax v. Town of Stony Point, 97 AD 2d 840, 841 (1983)].
Based upon the foregoing, we believe that the exception is intended to permit a public body to discuss its litigation strategy behind closed doors, rather than issues that might eventually result in litigation.
With regard to the sufficiency of a motion to discuss litigation, it has been held that:
"It is insufficient to merely regurgitate the statutory language; to wit, 'discussions regarding proposed, pending or current litigation'. This boilerplate recitation does not comply with the intent of the statute. To validly convene an executive session for discussion of proposed, pending or current litigation, the public body must identify with particularity the pending, proposed or current litigation to be discussed during the executive session" [Daily Gazette Co., Inc. v. Town Board, Town of Cobleskill, 44 NYS 2d 44, 46 (1981), emphasis added by court].
As such, a proper motion might be: "I move to enter into executive session to discuss our litigation strategy in the case of the XYZ Company v. the Board of Education."
The language of the so-called "personne" exception, §105(1)(f) of the Open Meetings Law, is limited and precise. In terms of legislative history, as originally enacted, the provision in question permitted 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..." (emphasis added).
Due to the presence of the term "particular" in §105(1)(f), an executive session may properly be held only when the subject involves a particular person or persons or a particular corporate entity.
It has been advised that a motion involving §105(1)(f) should be based on its specific language. For instance, a proper motion might be: "I move to enter into an executive session to discuss the employment history of a particular person (or persons)". Such a motion would not in our opinion have to identify the person or persons who may be the subject of a discussion. By means of the kind of motion suggested above, members of a public body and others in attendance would have the ability to know that there is a proper basis for entry into an executive session.
I point out that the OML includes two vehicles that may apply as means of excluding the public from a meeting. One is an executive session, which is defined to mean a portion of an open meeting during which the public may be excluded. As you know, before an executive session may be held, a motion to do so must be made in public, indicating the reason and carried by a majority vote of a board's total membership. The other vehicle involves "exemptions". Section 108 includes three exemptions, and when an exemption applies, the OML does not; it is as though the Open Meetings Law does not exist.
One of the exemptions, section 108(3), pertains to "matters made confidential by federal or state law." Judicial decisions have for decades indicated that legal advice given to a government board by its attorney is subject to the attorney-client privilege and is, therefore, confidential. Therefore, when a school district attorney offers legal advice to his or her client, such as a board of education, and the advice is given to or shared with the board during a gathering of the board, the attorney-client privilege applies, and the Open Meetings Law does not. A communication of that nature would, in our view, be exempt from the coverage of the OML. In a technical sense, a matter of that sort would not be an executive session, but rather a matter falling outside the scope of the OML.
Next, you referred to an audit committee. Here I point out that §2116-c (2) states that an audit committee must be established and that it may be "a committee of the trustees or board, as an advisory committee, or as a committee of the whole", and that an advisory committee "may include, or be composed entirely of person other than trustees or members of the board…" You wrote that "the Board appointed itself as the Audit Committee". By doing so, you indicated that Board would have violated its own policy. However, the appointment of the Board would not be inconsistent with the provision quoted above."
Pursuant to the Education Law, an audit committee of a school district may enter into executive session for purposes in addition to those set forth in the Open Meetings Law, as outlined in section 2116-c. Specifically, subdivision (7) of section 2116-c permits, in part, as follows:
"…a school district audit committee may conduct an executive session pursuant to section one hundred five of the public officers law [the Open Meetings Law] pertaining to any matter set forth in paragraphs b, c, and d of subdivision five of this section."
Subdivision (5) provides as follows:
"5. It shall be the responsibility of the audit committee to:
(a) provide recommendations regarding the appointment of the external auditor for the district;
(b) meet with the external auditor prior to commencement of the audit;
(c) review and discuss with the external auditor any risk assessment of the district's fiscal operations developed as part of the auditor's responsibilities under governmental auditing standards for a financial statement audit and federal single audit standards if applicable;
(d) receive and review the draft annual audit report and accompanying draft management letter and, working directly with the external auditor, assist the trustees or board of education in interpreting such documents;…" (emphasis mine)
In sum, the language of paragraphs (b), (c) and (d) provides additional grounds for an audit committee to enter into executive session and limits those discussions to those concerning external audits only.
Subdivision (6) of section 2116-c of the Education Law refers specifically to an audit committee’s responsibilities with respect to internal audits. However, it does not include language granting additional grounds for entry into executive session.
Lastly, you indicated that "the Board hasn't shared any of the auditors' findings." Here I note that §2116-a of the Education Law requires that "Each school district shall in a timely fashion post on its website, if any, the annual external audit report and the corrective action plan prepared in response to any findings contained in the annual external audit report, or management letter…"
In an effort to encourage knowledge of and compliance with law, a copy of this opinion will be sent to the Board of Education.I hope that I have been of assistance.