February 2012 - Recent Appellate Division decision

February, 2012 - Recent Appellate Division decision regarding the specificity of motions for entry into executive session

The Open Meetings Law requires that a motion for entry into executive session must indicate the subject or subjects to be discussed. Based on a recent decision of the Appellate Division, as well as earlier decisions, a motion cannot merely parrot the language of a statutory ground for conducting an executive session. It is clear that describing an issue as a “personnel matter,” a “legal matter,” or “contracts,” without more, is inadequate and fails to comply with law. In short, the decision confirms that a motion to conduct an executive session should include information sufficient to enable the public to believe that there is a valid basis for closing the doors.

We note the recent decision in Zehner v Board of Education of Jordan-Elbridge Central School District, in which the Appellate Division affirmed that the lower court

“… properly determined that respondent violated the Open Meetings Law on three occasions by merely reciting statutory categories for going into executive session without setting forth more precise reasons for doing so. Given the overriding purpose of the Open Meetings Law, section 105 is to be strictly construed, and the real purpose of an executive session will be carefully scrutinized ‘lest the … mandate [of the Open Meetings Law] be thwarted by thinly veiled references to the areas delineated thereunder’ (Daily Gazette Co. v Town Bd., Town of Cobleskill, 111 Misc2d 303, 304 [Sup Ct, Schoharie County 1981]; see e.g. Gordon v Village of Monticello, 87 NY2d 207 AD2d 55.” Zehner v Board of Education of Jordan-Elbridge Central School District, Appellate Division, 4th Dept, January 31, 2012.

The Supreme Court had set out three factual scenarios whereby the School Board motioned for entry into executive session, but failed to use sufficiently descriptive language. A copy of the lower court decision is available here.

The first scenario involved a motion to enter executive session for “discussion regarding proposed, pending or current litigation” and the employment matter of “a particular person or corporation or matters leading to appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation.” The court noted that the Board President clarified that she “limited the reasons for entering into executive session to the matters with which the Board would confer with counsel about” and that the Board discussed matters concerning proposed or pending and current litigation with counsel, as well as employee discipline issues pursuant to Education Law §3020-a, and employment issues concerning the Board’s former attorney.

The court found no reason for the “lack of specificity,” nor was there any indication that the minutes did not accurately reflect the motion. A violation of the Open Meetings Law occurred, the court determined, due to the Board’s failure to “identify with particularity the topic to be discussed,” citing previous decisions, “since only through such identification will the purposes of the Open Meetings Law be realized” (see e.g., Daily Gazette v. Cobleskill, supra; Gordon v. Monticello, supra).

The second scenario involved the Board conducting an executive session for two purposes: “collective negotiations pursuant to Article fourteen of the civil service law” and “the medical, financial, credit or employment history of a particular person.” The Board President claimed that “the Board spoke to its counsel about the same matters as discussed [in the first example], as well as matters related to negotiations with an employee union, but does not refute that only boilerplate language was utilized.”

In the third situation, the Board entered into executive session “for the purpose of discussing matters related to the appointment or employment of a particular person.” By its own admission, it failed to identify the matter as the process of searching for a new superintendent, even though there was no reason not to inform the public of that subject. The court determined that a violation of the Open Meetings Law occurred.

The Board’s recitation of statutory language contained within section 105(1) of the Open Meetings Law was insufficient, the court found, awarding attorney’s fees to the petitioner and directing the Board to attend training provided by this office.

The message is that members of public bodies must be both flexible and articulate in their motions for entry into executive session due to the intent of the Open Meetings Law, and the courts’ views concerning the narrowness of the grounds for conducting executive sessions.

It may no longer be sufficient for a motion to indicate the discussion pertains to “the employment history of a particular person” or “matters leading to the employment of a particular person” when interviewing candidates for a position. The Court appears to require that the motion indicate the position for which the candidates are being considered. While there may be a few circumstances under which this is not appropriate, it appears that this requirement is not only in keeping with the tenets of the Law, but that it offers clarification that will assist in minimizing speculation regarding the propriety of of discussions that occur in private.

Similarly, it can be inferred from the decision that when there is need to discuss an employee’s job performance, and any potential discipline resulting from such performance, the public body should refrain from listing all of the potential issues that could be discussed pursuant to section 105(1)(f); rather, a motion should refer only to those that are intended to be discussed. For example, a motion could simply be “to discuss the employment history of a particular person and matters leading to that person’s potential discipline or suspension.” It remains the view of this office that the name of a person need not be disclosed in a motion to conduct an executive session.

When the issue involves collective bargaining negotiations, the public body could, for example, indicate that it intends to discuss an offer received, that it is necessary to formulate the body’s strategy with respect to upcoming negotiations in executive session, or perhaps that it is in the process of drafting an offer. It would not be necessary to provide specific information about the nature of the offer, but identification of the particular union involved would be required (see e.g., Doolittle v. Board of Education, Supreme Ct., Chemung Cty., July 21, 1981)

The Zehner decision confirms Daily Gazette, supra, in which it was 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" (Id. at 46, emphasis added by court).

The emphasis in the passage quoted above on the word “the” indicates that when the discussion relates to litigation that has been initiated, the motion must name the litigation. For example, 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.” If the Board seeks to discuss its litigation strategy in relation to a person or entity that it intends to sue, and if premature identification of that person or entity could adversely affect the interests of the school district and its residents, it has been suggested that the motion need not identify that person or entity, but that it should clearly indicate that the discussion will involve litigation strategy. Only by means of that kind of description can the board comply with Zehner and inform the public that the subject matter may justifiably be considered during an executive session.

It is impossible to predict the circumstances surrounding every executive session, and this office has neither the resources nor the inclination to specify language in every situation. Accordingly, we encourage members of public bodies to share more information about their intended topic for discussion in executive session, in a manner that clarifies that the discussions are reasonably within the parameters of the law, and to protect individuals from what might be an unwarranted invasion of personal privacy and/or the government’s ability to function.