If you’ve ever been to a school board meeting in Central New York, you’ve probably noticed something on the agenda called an executive session. You probably didn’t know that the school board isn’t allowed, under New York state’s Open Meetings Law, to schedule an executive session on its agenda.
Odds are the members of the board who put together the agenda weren’t aware of that fact, either.
An executive session is a portion of the meeting that is closed to the public. Only the members of the board and anyone authorized by the board may be in attendance at the executive session. According to §105 of New York State Open Meetings Law, a public body may only enter into executive session for the following reasons:
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.
Under the law, the public body cannot take action by formal vote on anything discussed in executive session; they must reconvene in open session before a vote can be taken.
However, in order to even enter into executive session, a vote must be taken and approved by the majority of the board. That’s why, by law, it can’t be scheduled in advance.
“The point is, a vote to enter into executive session can only occur in open session. It has to be approved by a majority vote of the total membership of the board,” said Bob Freeman, executive director of the New York State Committee on Open Government. “It can’t be known in advance of the meeting whether or not the vote will be carried.”
In an executive opinion letter dated July 23, 2001, Freeman suggested an alternative to boards: “Rather than scheduling an executive session, the Board on its agenda or notice of a meeting could refer to or schedule a motion to enter into executive session to discuss certain subjects. Reference to a motion to conduct an executive session would not represent an assurance that an executive session would ensue, but rather that there is an intent to enter into an executive session by means of a vote to be taken during a meeting.”
So why do so many boards, particularly boards of education, across Central New York continue to routinely schedule executive sessions in advance of their meetings?
“I think they do it because they have always done it and no one has told them that they shouldn’t, and because they’re not as well-educated regarding Open Meetings Law as they should be,” Freeman said.
The best way to educate board members about Open Meetings Law, Freeman said, is through the vigilance of the public and the press.
“It’s my belief that the degree of knowledge and persistence on the part of local members of the news media has an impact on compliance,” he said. “If reporters aren’t familiar with Open Meetings Law, there are few instances in which they would insist upon compliance by a local board. We all rely upon members of the news media to tell us what’s going on.”
To learn more about Open Meetings Law, visit dos.state.ny.us/coog/index.html.
