As the town attorney for Amherst I am contacting you regarding my concern as to how a recent executive session was conducted by the Amherst Planning Board. I would appreciate if you can address my concerns and forward this email to the members of the Planning Board.
Dear Amherst Planning Board Members:
As a concerned citizen I reviewed the agenda for your May 19, 2016 meeting and watched the meeting video tape.
Item 8.1 of the agenda simply stated “Legal Matter”.
When item 8.1 of the agenda came up during the meeting a motion was made at the 2:51 mark of the tape to go into executive session to discuss a “confidential legal matter”. When Board member Shapiro inquired as to what the legal matter was the response provided was that can’t be answered in public. When member Shapiro asked whether this was regarding pending litigation, the answer given was that can’t be answered. Ms. Shapiro pointed out that before going into executive session the reason for the executive session must be stated.
As an attorney familiar with the New York State Open Meetings Law, I believe that Ms. Shapiro was correct and that the Board violated the law by going into executive session improperly.
Robert Freeman as the Executive Director for the New York State Committee on Open Government is a recognized expert on the Open Meeting Law. Mr. Freeman has rendered many opinions on the subject of holding executive sessions.
Attached is a 2008 Opinion written by the New York State Committee on Open Government, which states to validly convene an executive session for discussion of proposed, pending or current litigation, the public body must identify with particularity the pending, proposed or current litigation to be discussed during the executive session.
A key portion of the Opinion is repeated below:
It is emphasized that the Open Meetings Law requires that a procedure be accomplished, during an open meeting, before a public body may enter into an executive session. Section 105(1) states in relevant part that:
“Upon a majority vote of its total membership, taken in an open meeting pursuant to a motion identifying the general area or areas of the subject or subjects to be considered, a public body may conduct an executive session for the below enumerated purposes only…”
As such, a motion to conduct an executive session must include reference to the subject or subjects to be discussed, and the motion must be carried by majority vote of a public body’s total membership before such a session may validly be held. The ensuing provisions of §105(1) specify and limit the subjects that may appropriately be considered during an executive session.
Further, it has been held judicially that :
“…the public body must identify the subject matter to be discussed (See, Public Officers Law § 105 ), and it is apparent that this must be accomplished with some degree of particularity, i.e., merely reciting the statutory language is insufficient (see, Daily Gazette Co. v Town Bd., Town of Cobleskill, 111 Misc 2d 303, 304-305). Additionally, the topics discussed during the executive session must remain within the exceptions enumerated in the statute (see generally, Matter of Plattsburgh Publ. Co., Div. of Ottaway Newspapers v City of Plattsburgh, 185 AD2d §18), and these exceptions, in turn, ‘must be narrowly scrutinized, lest the article’s clear mandate be thwarted by thinly veiled references to the areas delineated thereunder’ (Weatherwax v Town of Stony Point, 97 AD2d 840, 841, quoting Daily Gazette Co. v Town Bd., Town of Cobleskill, supra, at 304; see, Matter of Orange County Publs., Div. of Ottaway Newspapers v County of Orange, 120 AD2d 596, lv dismissed 68 NY 2d 807)”
We stress that a public body may validly conduct an executive session only to discuss one or more of the subjects listed in §105(1) and that a motion to conduct an executive session must be sufficiently detailed to enable the public to ascertain that there is a proper basis for entry into the closed session.
A 1996 decision (also attached) written by Mr. Freeman states the proper way to motion for an executive session is “I move to enter into executive session to discuss our litigation strategy in the case of XYZ Company v. the City of Geneva.” Mr. Freeman also stresses that the purpose of an executive session to discuss pending litigation is to permit a public body to discuss its litigation strategy and not issues that might result in litigation.
In light of the above cited opinions which also reference Court decisions, my hope is that the Planning Board will correct the Agenda and minutes for the May 19, 2016 meeting by properly identifying the legal matter that was discussed under item 8.1.
I further hope that the Planning Board will change how it describes legal matters on future meeting Agendas and that motions for executive sessions will be properly done by specifying the legal matter and the reasons for an executive session, so that it complies with the Open Meetings Law.
I appreciate the time you devote to public service as I know that it is not easy work. My concern as a resident and as an attorney is that the public can see your work and that the law is properly followed.
I have copied Mr. Freeman on this email and I welcome any further information that he would like to share.
A copy of the video for the Planning Board meeting I am referring to is also attached.
Paul Wolf, Esq.