November 28, 2017 Open Meetings Law: Moving into Executive Session
KEEPING YOU INFORMED…
As you may have read in the news, the Supreme Court in Rockland County recently held that the East Ramapo School District’s Board of Education violated the Open Meetings Law (“OML”) when it made a motion to “convene into executive session to discuss litigation, personnel, real estate, and contracts…” on two separate occasions prior to terminating 20 bus drivers. The Court held that the Board had inadequately described the purpose for entering into Executive Session. As a result, the Court vacated and set aside the terminations.[1] In light of this court ruling, we are writing to remind you about the legal requirements for entering into an Executive Session during a Board meeting.
Pursuant to the OML (New York Public Officers Law Article 7), a motion to adjourn into Executive Session must: 1) be taken in an open (i.e., public) meeting; 2) generally state the purpose(s)/topic(s) to be discussed during the session; and 3) be approved by a majority vote of the Board’s total membership.
The permissible purposes for an Executive Session are as follows:
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.
(N.Y. Public Officers Law § 105).
The courts have held, however, that boards must provide greater specificity than the above-listed general purposes in order to fully comply with the OML. Examples of more specific statements of purpose include, but are not limited to:
• pending litigation in the matter(s) of [INSERT CASE NAME];[2]
• negotiations conducted pursuant to Civil Service Law Article 14 involving the [INSERT UNION/UNIT NAME(S)];
• the employment history of particular persons;
• matters leading to the potential appointment of a particular person;
• matters leading to the potential discipline of a particular person;
• matters leading to the potential termination of a particular person;
• matters leading to the potential appointment of a particular corporation;
• matters leading to the potential termination of a particular corporation;
• a potential disciplinary matter involving a particular student;
• the proposed sale of real property because the publicity would substantially affect the value thereof;
• seeking legal advice from the Board’s Attorney; and
• matters that would impact public safety.[3]
An example of a proper motion to adjourn into executive session is: “Motion to adjourn into Executive Session for the purpose of discussing negotiations conducted pursuant to Article 14 of the Civil Service Law involving the Teachers Unit; the employment history of particular persons; and matters leading to the termination of a particular person.” An example of an improper motion would be “Motion to adjourn into Executive Session for the purpose of discussing negotiations and personnel.”
Pursuant to the OML, a board may not, during an Executive Session, formally act or vote to appropriate public moneys. (N.Y. Public Officers Law § 105(1)). A board can, however, authorize counsel to act in certain circumstances, such as, for example, by providing authorization for responding to litigation or collective bargaining demands.
Penalties for noncompliance with the OML include, but are not limited to, injunctive relief; voiding, in whole or in part, the improper action; a mandatory training session for board members regarding the obligations of Public Officers Law Article 7; and costs and reasonable attorneys’ fees to the prevailing party.
If you have any questions regarding how to properly prepare motions to adjourn into Executive Session, please contact Alyssa Zuckerman or one of our other attorneys by calling (631) 694-2300.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
© Lamb & Barnosky, LLP 2017
[1] Matter of Lucas v. Board of Educ. of the E. Ramapo Cent. Sch. Dist., 2017 N.Y. Slip Op 51297(U); 57 Misc. 3d 1207(A). The Court also held that the Board of Education violated the Freedom of Information Law and awarded attorneys’ fees and other costs to the Petitioner.
[2] If the litigation involves a student, a best practice to avoid a Family Educational Rights and Privacy Act (also known as “FERPA”) violation is to instead state: “pending litigation against the District involving a particular student.”
[3] There are numerous other statements of purpose that may be used for adjourning into Executive Session. Please contact us to obtain a complete list.