OML AO 5634
By electronic mail only
October 26, 2020
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 am writing in response to your request for an advisory opinion regarding the application of Open Meetings Law (OML) to grievance proceedings held pursuant to a collective bargaining agreement. In your request, you pose three questions, the first of which is:
1. Would the Taylor Law contractual grievance proceedings conducted by the Superintendent of Schools at Stage 2 and Board of Education at Stage 3 be in the nature of quasi-judicial proceedings that are exempt from the Open Meetings Law pursuant to Public Officers Law § 108 because they require notice to the parties, have digital voice records and culminate in a decision by the Board of Education that is reviewable at arbitration before it may be appealed to court via a C.P.L.R. Article 75 proceeding?
First, I note that the OML governs meetings of public bodies. To the extent that a Stage 2 proceeding does not involve a public body – the Board of Education – the OML is not applicable. With regard to Stage 3 proceedings, which involve meetings with the Board of Education, I offer the following advice.
Section 108 of the OML contains three exemptions. When an exemption applies, the OML does not. One such exemption relates to “judicial or quasi-judicial proceedings, except proceedings of the public service commission and zoning boards of appeals.” OML § 108(1). While no court of which we are aware has addressed the question whether a Stage 3 Board of Education grievance proceeding is a quasi-judicial proceeding, courts have long suggested that to be considered a quasi-judicial proceeding, such proceeding must result in a final determination reviewable only by a court. For instance, in Johnson Newspaper Corporation v. Howland, Supreme Court, Jefferson County (1982), the Supreme Court held that:
The test may be stated to be that action is judicial or quasi-judicial, when and only when, the body or officer is authorized and required to take evidence and all the parties interested are entitled to notice and a hearing, and, thus, the act of an administrative or ministerial officer
becomes judicial and subject to review by certiorari only when there is an opportunity to be heard, evidence presented, and a decision had thereon.
In City of Albany v. McMorran, 34 Misc. 2d 316, 317 (Supreme Court, Albany County, 1962), the Supreme Court held:
Certiorari or a proceeding in the nature of certiorari is appropriate and available only to review the judicial or quasi-judicial action of a body or officer, this having been so under the common law and still being the rule in the absence of express statutory authority to the contrary . . . . The writ of certiorari is appropriate only to review the judicial action of inferior courts or of public offcers (sic) or bodies exercising under the laws judicial functions; and there is no authority to be found in the reports of this state sanctioning its use for any other purpose. When the action of a public officer, or of a public body, is merely legislative, executive or administrative, although it may involve the exercise of discretion, it cannot be reviewed by certiorari; and so it has been so often held that the rule has become elementary.
Given these precedents, it is our opinion that a final determination of a controversy is a condition precedent that must present before one can reach a conclusion that a proceeding may legally be considered “quasi-judicial.”
The contract language which you provided for our review states that there is a Stage 4 of the grievance procedure:
If the member of the Unit or the Association is not satisfied with the decision at Stage 3, and the Association determines that the grievance is meritorious and that appealing it is in the best interests of the school system, it may submit the grievance to binding arbitration by written notice to the Board of Education within fifteen (15) school days of the decision at Stage 3.
Based upon this language, it does not appear that the decision of the Board of Education at the Stage 3 proceeding constitutes the “final determination of a controversy” because it is not appealable to a court but rather to binding arbitration. As such, it is our view that the Stage 3 proceeding, involving a meeting with the Board of Education, does not constitute a quasi-judicial proceeding which would be exempt from the requirements of the OML. It is worthy of note, however, that if the proceeding concerns the “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,” the Board of Education is likely to conduct such proceeding in an executive session.
Your second question is based upon the presumption that the grievance proceedings discussed above are quasi-judicial and therefore exempt from the OML. As we have offered the opinion that they are not quasi-judicial (exempt), there is no need to address the question whether they may be held without notice to the public. As discussed above, a public body may wish to hold the proceeding in an executive session, and we are providing the following link to a previously prepared advisory opinion on this topic here: https://docs.dos.ny.gov/coog/otext/o2966.htm.
Finally, you ask:
Notwithstanding the nature of the proceedings under the Open Meetings
Law, would audio/digital recordings of the proceedings at Stage 2 and/or Stage 3 be accessible to the public by FOIL request? If so, when after each stage would a FOIL response be required and what could be
redacted based upon the provisions in Public Officers Law §§ 87 and 89?
As a general matter, the Freedom of Information Law (FOIL) is based upon a presumption of access. All records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §§ 87(2)(a) through (q) of the Law. Whether a record should be disclosed, in whole or in part, will depend on content. Staff of the Committee on Open Government cannot know the content of the records in question. As such, it is recommended that, in response to a FOIL request for a copy of a grievance proceeding recording, the school district review the content of the recording to determine rights of access.
I hope this information proves useful.