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The Sun editorial: Let’s talk about (but not during) executive session

HAMBURG — I had the privilege of attending the New York Press Association’s annual spring convention and trade show in Saratoga Springs the last two Aprils and was able to, as my father often says, “skim the cream off” the brains of many brilliant writers, publishers and others in the newspaper industry. While I attended many extremely informative lectures covering topics ranging from photo editing to investigative journalism, one thing stood out to me that I just had to share with our readers: New York state’s laws on executive sessions.

Robert Freeman Esq., the executive director of the Committee on Open Government, led forums about open government and the Freedom of Information Law. Many people in our community are already well-versed on how and when to utilize FOIL.

What we may not be so educated about is the executive session, the portion of an open meeting from which the public is excluded. Unfortunately, as Freeman delved into the how, what, when and why specifications for executive sessions, it became more and more clear to me that many local boards either do not completely understand the requirements for going into executive session, or they think the members of the public themselves do not, and take advantage of that fact.

A COOG publication titled “Your Right to Know,” which may be found online at www.dos.ny.gov/coog/Right_to_know.html, lists eight topics New York state boards can go into executive session to discuss:

– Matters which will imperil public safety, if disclosed.

– Matters that may disclose the identity of a law enforcement agency or informer, information relating to current or future investigations or prosecution of a criminal offense which would imperil effective law enforcement, if disclosed.

– Discussions regarding proposed, pending or current litigation.

– Collective negotiations pursuant to Article 14 of the Civil Service Law.

– The preparation, grading or administration of examinations.

– 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 individual or corporation.

– 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.

The second to last item particularly stood out to me. Many, many times, as have sat in a board meeting, one board member or another has made a motion to go into executive session “to discuss personnel.” Guess what? That’s not good enough.

According to the COOG, in order to leave the open, public part of a meeting, boards must specify that they are going to be talking about a specific person or corporation, not just a position. For example, if a position is being eliminated, the board must discuss that item in public – even if there is just one of those positions and one individual being let go. If the person is being fired for his or her conduct, however, that issue may be discussed away from the public eye. Conversely, if an individual is up for tenure, that item should be discussed in executive session.

School boards cannot take action during executive session, and I can say first-hand that our local school boards have been very good about coming out of session, to take their actions.

Something else I found interesting is that, if the board goes into executive session to talk about union negotiations, it must specify which union is being discussed.

Boards may go into executive session to discuss litigations, pending or current, but those motions must include enough detail to specify that new information is being covered. This is very important, because if a court finds out that the board did not follow the letter of the law on this item, the board can be charged a large fee (which may be given to the individual filing a complaint about the board), actions can be initiated against the board and the board members can be ordered to participate in training sessions with members of the COOG.

To go into executive session, a majority of the total membership (not excluding any absent members) must vote to enter that session. So, in other words, if three out of five board members are present at a meeting and only two of those members vote to go into executive session (making the vote two to three), the motion will fail.

Boards have to make the minutes from both the open and executive sessions available to the public after the event, if action is taken. These minutes must be compiled and released within two weeks of the meeting.

The Hamburg Town Board’s April 9 special meeting included a very lengthy executive session in which the board entered, to discuss the 11 bids received for Woodlawn Beach concessions.

The COOG, however, said that a board can discuss this type of subject behind closed doors “only when publicity would substantially affect the value thereof.”

I have a hard time believing that discussions about bids that are publicly available at the town clerk’s office could not have been held before the media and gathered public.

According to the COOG, anyone who feels that an executive session was improperly held can bring a lawsuit against that board. The court can declare either that the “public body violated the Open Meetings Law ... or declare the action taken void.”

It is interesting to note that New York state law does not require boards to allow the public to speak at all, at meetings. Keep your board members accountable, but also be thankful for the involvement they allow you to have, during their open sessions.

For more information about FOIL and executive sessions, visit the COOG’s website at www.dos.ny.gov/coog.
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