New York State’s Committee on Open Government said today that the Sweden Town Council did violate the NYS Open Meetings Law during their January 28th meeting.
Robert J. Freeman, Executive Director of the Committee on Open Government, responded to an inquiry about whether the Sweden Town Council violated the Open Meetings Law when they went into executive session to discuss a “legal matter” at their January 28, 2014 meeting.
In his response, Mr. Freeman stated the Committee on Open Government had already ruled on this question on May 28, 2004, when it issued an Advisory Opinion about an almost identical case in Lewiston, NY, which is just 60 miles west of Brockport.
In the Lewiston case, the town board voted to enter into executive session, to discuss “legal matters”.
According to minutes of the January 28, 2014 Sweden Town Council meeting:
“Councilperson Windus-Cook made a motion that was seconded by Councilperson Roberts to go into executive session at 7:30 p.m. to discuss a legal matter on a proposed tax exemption. All voted in favor of the motion. Motion adopted. No action taken. Councilperson Roberts made a motion that was seconded by Councilperson Muesebeck to leave executive session and return to the regular meeting at 8:15 p.m. All voted in favor of the motion. Motion adopted.”
It is stunning to discover that the Sweden Town Council violated the Open Meetings Law by using the identical words that the COOG had already said were not legal.
“There is no provision that directly authorizes a public body to discuss “legal matters” during an executive session.”
Robert J. Freeman,
NYS Committee on Open Government,
The COOG Advisory Opinion issued in the 2004 case in Lewiston about going into executive session, to discuss “legal matters” reads as follows:
you asked that I “explain the proper motion to enter into executive session”, and you referred specifically to a motion to discuss “legal matters.” I point out that §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. While there is no requirement that the public be informed of whether a public body intends to return to the open meeting following an executive session, I believe that it would be considerate and courteous to do so.
With respect to the subject matter, there is no provision that directly authorizes a public body to discuss “legal matters” during an executive session. To put your question in context, the Open Meetings 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.
The provision most analogous to “legal matters” is §105(1)(d), which permits a public body to enter into executive session to discuss “proposed, pending or current litigation.” in construing the exception concerning litigation, it has been held that:
"The purpose of paragraph d is "to enable is to enable a public body to discuss pending litigation privately, without baring its strategy to its adversary through mandatory public meetings' (Matter of Concerned Citizens to Review Jefferson Val. Mall v. Town Bd. Of Town of Yorktown, 83 AD 2d 612, 613, 441 NYS 2d 292). The belief of the town's attorney that a decision adverse to petitioner 'would almost certainly lead to litigation' does not justify the conducting of this public business in an executive session. To accept this argument would be to accept the view that any public body could bar the public from its meetings simply be expressing the fear that litigation may result from actions taken therein. Such a view would be contrary to both the letter and the spirit of the exception" [Weatherwax v. Town of Stony Point, 97 AD 2d 840, 841 (1983)].
Based upon the foregoing, I believe that the exception is intended to permit a public body to discuss its litigation strategy behind closed doors, rather than issues that might eventually result in litigation.
With regard to the sufficiency of a motion to discuss litigation, it has been held that:
"It is insufficient to merely regurgitate the statutory language; to wit, 'discussions regarding proposed, pending or current litigation'. This boilerplate recitation does not comply with the intent of the statute. 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" [Daily Gazette Co. , Inc. v. Town Board, Town of Cobleskill, 44 NYS 2d 44, 46 (1981), emphasis added by court].
The emphasis in the passage quoted above on the word “the” indicates that when the discussion relates to litigation that has been initiated, the motion must name the litigation. For example, a proper motion might be: “I move to enter into executive session to discuss our litigation strategy in the case of the XYZ Company v. the Town of Lewiston.” If the Town Board seeks to discuss its litigation strategy in relation to a person or entity that it intends to sue, and if premature identification of that person or entity could adversely affect the interests of the Town and its residents, it has been suggested that the motion need not identify that person or entity, but that it should clearly indicate that the discussion will involve the litigation strategy. Only by means of that kind of description can the public know that the subject matter may justifiably be considered during an executive session.
When asked what the people of Sweden need to do next to remedy the situation, Mr. Freeman responded
“This office is not empowered to enforce the Open Meetings Law, and in fact no state agency does so. In my view, the best course of action would involve an attempt to educate. If you find the opinion to be useful, I suggest that you distribute it to Board members.”
Mr. Freeman then added that, “The only means of attempting to enforce the law involves the initiation of a lawsuit.”
In other words, the NYS Open Meetings Law doesn’t have any teeth, and that may be why the members of the Sweden Town Council feel they can get away with violating the law.
So it seems that the people of the Town of Sweden will have to sue the Town supervisor, the members of the Town Council, and the Town Attorney if they want the Sweden Town Council to comply with the law.
It shouldn’t come to this, but it has.
Something is definitely brewing in the Town of Sweden, and it isn’t a pot of coffee. It’s a lawsuit about the scandalous way the Sweden Town Council conducts business.