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Motions for entry into executive
session – what is required?
By the New York State
Association of School Attorneys
The next time a motion is made for
an executive session during a meeting of
your school board, don’t be surprised if
your school attorney recommends that
the motion be more specific. Citizens
have successfully challenged the legality
of motions that merely recite boilerplate
statutory language as the reason for an
executive session, resulting in board
members being ordered to receive special
training and the district to pay attorneys’
fees. This article will review the requirements
of the state’s Open Meetings Law
(OML), case law and advisory opinions
to help boards avoid these potential problems.
Reasons to meet in executive session
Because school boards are public
bodies, all meetings of a quorum of the
board must be open to the public except
where an executive session is properly
convened for certain reasons authorized
by law. While the OML lists eight reasons,
the most common grounds invoked
by school boards are to discuss:
• Proposed, pending or current
litigation.
• Collective negotiations pursuant to
article 14 of the Civil Service Law.
• 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.”
The OML provides that an executive
session is convened upon a majority vote
of the board’s 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.”
The law, however, does not prescribe
how specific a motion must be. To find
guidance on this point, we must look to
prior court decisions and the advisory
opinions of the New York State Committee
on Open Government (the Committee).
Both the courts and opinions issued
by Robert Freeman, the Committee’s executive
director, have repeatedly stated
that “it is insufficient to merely regurgitate
the statutory language” in a motion
for an executive session. The rationale
behind these opinions is that those attending
a public meeting should have
sufficient information to know whether
the board has a proper reason for closing
its doors.
Courts have long had the discretion
to invalidate actions taken in private in
violation of the Open Meetings Law. Although
the Committee only has the authority
to issue advisory opinions, often
these opinions are relied upon by courts
to render decisions on alleged OML violations.
In recent years the state Legislature
has amended the OML, twice to create
sanctions for public bodies that violate
the law. In 2008 it allowed courts to
award attorneys’ fees to citizens who
successfully challenge a board action as
violating OML, and
in 2010 courts were
granted authority to
require the members
of the public body to
receive training given
by the Committee.
Both of those penalties were applied
in a 2012 decision by the Appellate Division
of state Supreme Court, Fourth Department.
In Matter of Zehner v. Bd. of
Educ. of the Jordan-Elbridge Cent.
School Dist., the court found that the
school board violated the OML on three
occasions by merely reciting statutory
categories for going into executive session
without setting forth more precise
reasons for doing so. Given the school
board’s repeated violations, including violations
which were the subject of an earlier
court decision involving the same
parties, the judge ordered the board to receive
training and awarded attorneys’
fees to the petitioner, a former principal
who challenged the board’s actions.
In light of the Zehner decision and
prior rulings, here are recommendations
for handling the three most common categories
of executive sessions:
The so-called “personnel” exception
The OML permits an executive session
for the purpose of discussing the
“employment history of a particular person
…” or “matters leading to the appointment,
employment, promotion,
demotion, discipline, suspension, dismissal
or removal of a particular person…”
Given this statutory language, the
Committee’s advisory opinions have long
taken the position that a broad motion for
the stated purpose of discussing “personnel
matters” is inadequate.
The Committee’s opinions have suggested
the following language might be
appropriate: “I move to enter into an executive
session to discuss the employment
history of a particular person (or
persons).” Such a motion would not have
to identify the person or persons who
may be the subject of
a discussion, according
to the Committee.
However, it is important
to note that in
Zehner the court
found a motion using
the precise wording above to be insufficient.
The board had gone into executive
session to discuss the search for an interim
superintendent. The court noted
that there was no reason not to inform the
public of this detail.
Reacting to this decision, the Committee
said in a March 8, 2012 advisory
opinion: “Accordingly, we encourage
board members to share more information
about their intended topic(s) for discussion
in executive session in a manner
that clarifies that the discussions are
within the parameters of the law, and to
protect individuals from what might be
an unwarranted invasion of personal privacy
and/or the government’s ability to
function.”
The implications for school boards
are clear. School boards should consider
the circumstances before voting to enter
executive session and use a motion appropriate
to those circumstances to balance
the public’s right to know with other
factors. When invoking the “personnel”
exception, it is recommended that a motion
include, at a minimum, a reference
to the employment action at issue (e.g.
“appointment”, “tenure” or “potential
discipline”) and state that such action is
in regard to a particular individual (e.g.
“particular employee” or “Employee
‘A’”).
It is further recommended that the
motion reference the particular position
where there is no prejudice to the employee
and/or the subject is otherwise a
matter of public knowledge. Examples
would include a motion for executive session
to discuss the superintendent’s annual
evaluation or a motion to discuss the
appointment or employment of a new superintendent
(in a case where the current
superintendent has announced his or her
retirement).
In some situations, however, it may
be prejudicial – that is, unfairly compromising
the interests of either the district
or other parties – to reference the particular
position. In such situations it would
still be appropriate to include some detail
about the nature of the employment action
to be discussed (e.g. a motion for executive
session “to discuss potential
disciplinary charges against a particular
employee”).
The “litigation” exception
Courts have held that the purpose of
the litigation exception is to enable a
public body to discuss pending litigation
privately without baring its strategy to an
adversary through mandatory public
meetings. Relying in part on these court
decisions, the Committee’s advisory
opinions have frowned on general motions
to discuss “pending litigation” finding
that such motions merely regurgitate
the statutory language. In Zehner the
court also found the board’s mere reference
to the statute to be insufficient but it
did not indicate what level of detail it
would deem to be adequate.
The Committee’s advisory opinions
have generally advised that a motion to
discuss pending litigation should identify
the name of the case, e.g.: “I move to
enter into executive session to discuss
our litigation strategy in the case of XYZ
Company v. ABC Central School District.”
At the same time, the Committee
has recognized that, in some cases, identification
of an adversary may adversely
impact the board’s position in litigation,
and in such cases it may not be appropriate
to reference the entity by name. In
those instances, the advisory opinions
recommend that the motion simply refer
to the discussion of litigation strategy.
In general, boards would be well-advised
to include specificity whenever this
would not compromise the interests of
the district – and its taxpayers – in the litigation.
The “collective bargaining” exception
The OML permits a public body to

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