The eight legal reasons for holding an executive session:
1. Matters that will imperil the public safety if disclosed.
2. Any matter that may disclose the identity of a law-enforcement agent or informer.
3. Information relating to current or future investigation or prosecution of a criminal offense that would imperil effective law enforcement if disclosed.
4. Discussions regarding proposed, pending or current litigation.
5. Collective negotiations pursuant to Article 14 of the Civil Service Law.
6. 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.
7. The preparation, grading or administration of examinations.
8. 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 their value.
Source: Open Meetings Law, Public Officers Law, Article 7, §105: Conduct of executive sessions
Robert J. Freeman
Robert Freeman is a lawyer who has been serving as executive director of the New York State Committee on Open Government since 1976.
He is the recipient of the Friends of the Free Press Award and was given the First Amendment Award by the New York Press Association.
Freeman also co-authored the New York State Freedom of Information and Privacy Protection Laws and has issued more than 20,000 advisory opinions on behalf of the Committee on Open Government.
All 20,000 opinions, as well as other resources, are available at the committee's Web site:
www.dos.state.ny.us/coog/coogwww.html
PLATTSBURGH — Governmental boards still make plenty of mistakes when it comes to the New York State Open Meetings Law.
And Robert J. Freeman, who has been executive director of New York State Committee on Open Government since 1976, knows the biggest pitfalls.
In a recent forum, held at Plattsburgh State and sponsored by the Press-Republican and the college's Journalism Department, Freeman discussed the Open Meetings Law.
What is a Meeting?
Freeman first explained the basic principles of the law to the nearly 50 people in attendance.
Open Meetings Law covers public bodies, such as town councils, school boards, village boards and meetings of college boards.
So, what constitutes a meeting?
"Any time a majority of a public body gathers to conduct the public business — if there is no intent to take action, regardless of what it's called — yes, it's a meeting under Open Meetings Law," Freeman said.
This can even include a harmless back-yard barbecue where a majority of board members start discussing the town budget innocently, he added.
"From there, the law says that meetings have to be open to the public unless there is a basis for entry into what is called an executive session."
Executive Session
There are eight grounds for entering into executive session, Freeman said.
"In any case, the question is, does the subject matter fit?"
And it must fit to make the closure legal.
"I have to suggest to people in government all the time that embarrassment is not one of the grounds for withholding records," Freeman said. "If it were, let's face it, there would be little left of these laws."
And if it does meet those grounds, Freeman said, his "Tracy Chapman Principle" applies.
"Baby just give me one reason, and I'll turn right back around," he said, quoting the songstress.
VOTE FOR CLOSURE
Boards must explain reasons for not disclosing certain information in a public meeting by following a three-step process, Freeman emphasized.
"Number one, somebody on the board — whatever the board might be — has to introduce the motion in public to close the doors.
"Number two, the motion has to indicate what they want to talk about.
"Number three, from there the motion has to be carried by a majority of the total membership, notwithstanding absences or vacancies."
If a seven-member board has two members out sick and votes 3 to 2 for executive session, it doesn't carry, he explained.
Litigation
One often-misused reason for executive sessions is for "proposed, pending or current litigation," Freeman said.
"What the courts have told us for years and years and years (is the) intent behind the litigation exception is to enable a public body to discuss its litigation strategy in private, so as to not divulge its strategy to its adversary, who may be out in the crowd."
But, there's a catch.
"The threat, the fear, the possibility of litigation without more is not enough to justify the executive session," Freeman stressed.
'Personnel' Matters
Another common reason cited by boards going into executive session, he said, is for "personnel" matters.
"'Personnel' drives me crazy," Freeman said. "We hear it all the time. It doesn't appear in the Open Meetings Law anywhere. It doesn't appear in the Freedom of Information Law anywhere. Yet, we hear it all the time. It's a catch-all."
And the public enables it.
"There's no law that says that, but we Americans, in too many instances, have become stupid and sheep-like," Freeman said.
"We begin to believe they are true, and when we begin to believe they are true, they become true. The consequence is, we lose our rights."
Some information regarding people can be discussed in closed session, Freeman said.
Those situations are when discussion would be about "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," with a stress on the word "particular," he said.
"Now, you're armed and dangerous," Freeman concluded.
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