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The following should not be construed as legal advice, for which the services of counsel should be obtained:
Question . . .
What procedures are required for trustees to convene a library or library system board meeting to discuss public business, and to bar attendance by the general public or another board member?
[Note: it would be prudent for trustees to discuss the following with counsel to ensure that the opinions cited are currently representative, if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinions.]
Answer . . .
Convening an executive session- In response to an inquiry by a member of county legislature who questioned actions taken during an executive session of that body, Counsel to COOG stated: “First, it is noted that there are two vehicles that may authorize a public body to discuss public business in private. One involves entry into an executive session. Section 102(3) of the Open Meetings Law defines the phrase “executive session” to mean a portion of an open meeting during which the public may be excluded, and the Law requires that a procedure be accomplished, during an open meeting, before a public body may enter into an executive session. Specifically, §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 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. Therefore, a public body may not conduct an executive session to discuss the subject of its choice.
“The other vehicle for excluding the public from a meeting involves ‘exemptions.’ Section 108 of the Open Meetings Law contains three exemptions. When an exemption applies, the Open Meetings Law does not, and the requirements that would operate with respect to executive sessions are not in effect. Stated differently, to discuss a matter exempted from the Open Meetings Law, a public body need not follow the procedure imposed by §105(1) that relates to entry into an executive session. Further, although executive sessions may be held only for particular purposes, there is no such limitation that relates to matters that are exempt from the coverage of the Open Meetings Law.
“It has been advised that members of a public body may meet in private to seek legal advice from their attorney, and that when they do so, their communications fall within the attorney-client privilege [see Part 2 below]. Because the communications are confidential, a gathering of that nature would be exempt from the coverage of the Open Meetings Law pursuant to §108(3) of that statute, which exempts from the Open Meetings Law matters made confidential by state or federal law. In situations in which a public body has been sued by one of its own members, that member, in my opinion, could be excluded from a gathering of the other members of the body when they are seeking legal advice. However, the transcript of the June 10 meeting specifies that a motion was made to enter into executive session. Because the gathering was an executive session rather than a matter exempt from the Open Meetings Law, I believe that you, a member of the Legislature, had the right to be present. Section 105(2) states that: ‘Attendance at an executive session shall be permitted to any member of the public body and any other persons authorized by the public body.’ In short, although you might have been properly excluded from a gathering held outside the coverage of the Open Meetings Law based on the assertion of the attorney-client privilege, in my view, because of the manner in which the Legislature chose to engage in a private discussion, entry into an executive session, you had the right to attend that session.
“Second, as indicated earlier, the Legislature took action by reaching a ‘consensus.’ In this regard, in Previdi v. Hirsch [524 NYS 2d 643 (1988)], which involved a board of education, the issue pertained to access to records, i.e., minutes of executive sessions held under the Open Meetings Law. Although it was assumed by the court that the executive sessions were properly held, it was found that ‘this was no basis for respondents to avoid publication of minutes pertaining to the “final determination” of any action, and “the date and vote thereon”’ (id., 646). The court stated that:
‘The fact that respondents characterize the vote as taken by “consensus” does not exclude the recording of same as a “formal vote”. To hold otherwise would invite circumvention of the statute.
‘Moreover, respondents’ interpretation of what constitutes the “final determination of such action” is overly restrictive. The reasonable intendment of the statute is that “final action” refers to the matter voted upon, not final determination of, as in this case, the litigation discussed or finality in terms of exhaustion or remedies’ (id.).
“Whenever action is taken by a public body, I believe that it must be memorialized in minutes, and §106 of the Open Meetings Law provides that:
1. Minutes shall be taken at all open meetings of a public body which shall consist of a record or summary of all motions, proposals, resolutions and any other matter formally voted upon and the vote thereon.
2. Minutes shall be taken at executive sessions of any action that is taken by formal vote which shall consist of a record or summary of the final determination of such action, and the date and vote thereon; provided, however, that such summary need not include any matter which is not required to be made public by the freedom of information law as added by article six of this chapter.
3. Minutes of meetings of all public bodies shall be available to the public in accordance with the provisions of the freedom of information law within two weeks from the date of such meetings except that minutes taken pursuant to subdivision two hereof shall be available to the public within one week from the date of the executive session.
“In my view, when the Legislature reached a consensus reflective of its decision to appeal, that decision, whether it was made in public or during an executive session, was required to have been memorialized in minutes….” (Op COG OML 4690, September 23, 2008).
“[T]here are two vehicles that may authorize a public body to discuss public business in private…. One involves entry into an executive session…. The other vehicle for excluding the public from a meeting involves “exemptions.” Section 108 of the Open Meetings Law contains three exemptions. When an exemption applies, the Open Meetings Law does not, and the requirements that would operate with respect to executive sessions are not in effect. Stated differently, to discuss a matter exempted from the Open Meetings Law, a public body need not follow the procedure imposed by §105(1) that relates to entry into an executive session. Further, although executive sessions may be held only for particular purposes, there is no such limitation that relates to matters that are exempt from the coverage of the Open Meetings Law.
“Relevant is §108(3), which exempts from the Open Meetings Law:
…any matter made confidential by federal or state law.
“When an attorney-client relationship has been invoked, it is considered confidential under §4503 of the Civil Practice Law and Rules. Therefore, if an attorney and client establish a privileged relationship, the communications made pursuant to that relationship would in my view be confidential under state law and, therefore, exempt from the Open Meetings Law.
“In terms of background, it has long been held that a municipal board may establish a privileged relationship with its attorney [People ex rel. Updyke v. Gilon, 9 NYS 243 (1889); Pennock v. Lane, 231 NYS 2d 897, 898 (1962)].
“However, such a relationship is in my opinion operable only when a municipal board or official seeks the legal advice of an attorney acting in his or her capacity as an attorney, and where there is no waiver of the privilege by the client.
“In a judicial determination that described the parameters of the attorney-client relationship and the conditions precedent to its initiation, it was held that:
‘In general, “the privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services (iii) assistance in some legal proceedings, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client”’ [People v. Belge, 59 AD 2d 307, 399, NYS 2d 539, 540 (1977)].
“Insofar as a public body seeks legal advice from its attorney and the attorney renders legal advice, I believe that the attorney-client privilege may validly be asserted and that communications made within the scope of the privilege would be outside the coverage of the Open Meetings Law. Therefore, even though there may be no basis for conducting an executive session pursuant to §105 of the Open Meetings Law, a private discussion might validly be held based on the proper assertion of the attorney-client privilege pursuant to §108, and legal advice may be requested even though litigation is not an issue. In that case, while the litigation exception for entry into executive session would not apply, there may be a proper assertion of the attorney-client privilege.
“There are several decisions in which the assertion of the attorney-client privilege has been recognized as a means of closing a meeting. In Cioci v. Mondello (Supreme Court, Nassau County, March 18, 1991), the issue involved the ability of a county board of supervisors to seek the legal advice of its attorney in private, and the court stated that ‘Clearly, the Supervisors’ discussions with the County Attorney…are exempt from the provisions of the Open Meetings Law (see POL §108(3), CPLR §4503…)’. In another decision citing §108(3), it was found that ‘any confidential communications between the board and its counsel, at the time counsel allegedly advised the Board of the legal issues involved in the determination of the variance application, were exempt from the provisions of the Open Meetings Law’ [Young v. Board of Appeals, 194 AD2d 796, 599 NYS2d 632, 634 (1993)].
“Notwithstanding the foregoing, it has been advised by this office and held judicially that the authority to assert the attorney-client privilege as an exemption from the coverage of the Open Meetings Law is narrow. In a decision that cited an advisory opinion of the Committee, the court in White v. Kimball (Supreme Court, Chautauqua County, January 27, 1997) found that:
‘While there is no question that Executive Sessions can be conducted for proper reasons and that an exception exists under the Open Meetings Law for attorney-client privileged communications, the scope of that privilege is limited [emphasis supplied]. Once the legal advice is offered, discussions with regard to substance (e.g.) the closing date of a bus system, do not fall within the privilege of the exception. See Exhibit C, April 8, 1996 Open Meetings Law Advisory Opinion #2595, Robert J. Freeman, Executive Director of Committee on Open government at page 4:
‘“I note that the mere presence of an attorney does not signify the existence of an attorney-client relationship; in order to assert the attorney-client privilege, the attorney must in my view be providing services in which the expertise of an attorney is needed and sought. Further, if at some point in a discussion, the attorney stops giving legal advice and a public body may begin discussing or deliberating independent of the attorney. When that point is reached, I believe that the attorney-client privilege has ended and that the body should return to an open meeting.”’
“The same kind of analysis would apply in considering rights of access conferred by the Freedom of Information Law. That statute, like the Open Meetings Law, is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (j) of the Law.
“The first exception to rights of access, §87(2)(a), pertains to records that ‘are specifically exempted from disclosure by state or federal statute’. Therefore, legal advice sought by a client and rendered by the client’s attorney would be exempted from disclosure pursuant to §4503 of the Civil Practice Law and Rules” (Op COOG OML 4622. May 5, 2008).
Please note: If you have any additional questions about this topic, please contact Joe Eisner at the e-mail/phone above.
You are also encouraged to visit the NYS Committee on Open Government website where you can read more about the Open Meetings Law and about the opinions referenced in this article.