Tuesday, March 06, 2012

A body electing to go into executive session must indicate the precise reasons for its so doing and not merely recite the statutory categories for doing so

A body electing to go into executive session must indicate the precise reasons for its so doing and not merely recite the statutory categories for doing so
Zehner v Board of Educ. of Jordan-Elbridge Cent. School Dist., 91 AD3d 1349

The basic rule is that every meeting of a public body shall be open to the general public, except that an executive session of such body may be called and business transacted thereat in accordance with Section 105 of the Public Officers Law.

An executive session is not open to the general public, but the subjects that may be discussed in such a session are limited by §105 of the Open Meetings Law.* Those set out the statute include matters involving public safety, proposed, pending or current litigation, collective bargaining, and matters concerning the appointment or employment status of a particular person.

In this instance, said the Appellate Division, Supreme Court properly determined that the School Board violated the Open Meetings Law on three occasions when it merely recited the statutory categories for going into executive session without setting forth a precise reason or reasons for doing so.

Citing Daily Gazette Co. v Town Bd., Town of Cobleskill, 111 Misc 2d 303, the Appellate Division said that §105 of the Open Meetings Law is to be strictly construed and that the “real purpose of an executive session will be carefully scrutinized.” This, court explained, was to make certain that the mandate of the Open Meetings Law would not be thwarted “by thinly veiled references to the areas delineated thereunder."

Noting that §107(5) of the Open Meetings Law provides that "costs and reasonable attorney fees may be awarded by the court, in its discretion, to the successful party," the Appellate Division said that it did not perceive any abuse of Supreme Court's discretion in awarding attorney fees to Zehner.

* Section 105 of the Public Officers Law provides that “A public body may conduct an executive session for the below enumerated purposes only, provided, however, that no action by formal vote shall be taken to appropriate public moneys:
 a. matters which will imperil the public safety if disclosed;
 b. any matter which may disclose the identity of a law enforcement agent or informer;
 c. information relating to current or future investigation or prosecution of a criminal offense which would imperil effective law enforcement if disclosed;
 d. discussions regarding proposed, pending or current litigation;
 e. collective negotiations pursuant to article fourteen of the civil service law;
 f. 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;
 g. the preparation, grading or administration of examinations; and
 h. the proposed acquisition, sale or lease of real property or the proposed acquisition of securities, or sale or exchange of securities held by such public body, but only when publicity would substantially affect the value thereof.”

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