Because the general public and media are prohibited from executive sessions, New York State’s open meeting law contains very specific rules as to how an executive session should be convened during a public meeting. The purpose of these rules is to make sure that anyone attending the meeting can hear and understand the reason for the session at the time it is convened. The rules also serve to keep officials accountable for keeping their discussion limited to the reason stated, as well as defining which subjects are allowable to discuss in private.
When elected officials fail to follow the rules when convening an executive session, not only are the purposes of the open meeting law subverted, but the municipality is put at risk as decisions or resolutions that result from those sessions could be invalidated if challenged in court.
I’ve witnessed many executive sessions called by the Amsterdam Common Council over the past seven years, and I supposed that’s why a while back on October 20, a motion to go into executive session by the Amsterdam Common Council stood out to me as an obvious red flag.
There was no clear reason given by any official for the session at the time the motion was made. Corporation Counsel Anthony Casale had mentioned something, but I couldn’t hear it clearly. Before I exited the room, I asked, directly, what the reason for the session was.
“Public officer’s law section 105-1f,” replied Casale.
After looking that up, it turns out that section of New York State law describes a group of over 24 different subjects that are allowable to discuss under executive session.
The beginning of that same section states what I thought was a fairly straightforward rule for motions to go into executive session.
“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…”
Additionally, the New York State Committee on Open Government publishes many court cases and opinions on the open meeting law which clarify how the law should be interpreted. One widely cited case makes it clear that the reason given should be as specific as possible.
“…the public body must identify the subject matter to be discussed and it is apparent that this must be accomplished with some degree of particularity, i.e., merely reciting the statutory language is insufficient.”
When I pressed the issue upon returning to the meeting, Casale pushed back, pointing out that the reason for the session was discussed in the preceding committee meeting. Alderman Jim Martuscello also clarified to me the meeting was to interview two competing accounting firms, which is a valid reason, one of the many identified in section 105-f.
So I hemmed and hawed for quite a while, mulling over whether this “no harm to foul” type of defense was sufficient, or if the principle of the rule was worth defending in order to stop a potentially bad precedent from being set.
What also motivated me to pursue the issue further was learning that although Casale claimed the council did nothing wrong, it seems as though someone realized there was a problem because the official minutes for the meeting recorded “a motion to enter Executive Session at 6:01PM regarding Public Officers Law 105.1F to conduct interviews with Auditors” even through those words were never actually spoken. Even after I called attention to that detail, the council and mayor approved the minutes at the next meeting. Can they do that, I asked myself?
I decided to request an opinion from the New York State Committee on Open Government. I documented the issue of the motion and the issue of changing the minutes as best I could and sent it in.
As part of the process, Casale was contacted by the committee and given a chance to provide a response. In his letter, he reiterated his previous defense that the reason for the motion was stated at the preceding committee meeting, and after the session as well. However, I was glad he at least conceded in his response, “If given the opportunity to re-state out loud the sentence that led to the motion, I would have made the sentence longer to include specificity that the Council would be interviewing prospective accountants to provide professional services for the City relating to the audit.”
However, he also added.
“The City has acted in good faith and with transparency and Mr. Becker appears to be taking action to find a ‘gotcha’ moment in a misguided watchdog effort of sorts.”
So even though apparently, I had a valid point, Casale couldn’t seem to resist taking a personal shot at me, which seems to me very unprofessional. Given that he represents all the elected officials when he makes a public statement, I pressed Mayor Michael Cinquanti to tell me if he shared the same sentiments toward me as Casale. He said he did not.
The response from the state committee was, frankly, disappointing to me.
Kristin O’Neill, assistant director for the committee wrote, “The Committee encourages board members to include in its motions enough information about the intended topic(s)of discussion for executive session to allow both the public and fellow board members to be confident that the discussions are within the parameters of the law.”
So it’s nice that they “encourage” board members to follow the law. But apparently, strict compliance is optional.
She concluded, “Based on my review of the meeting recording, it appears that while the actual motion was brief and only included a reference to the applicable section of the statute, the Council did make clear on more than one occasion, both before and after the executive session, that the intent of the executive session was to conduct auditor interviews. In my opinion, given the full context of the meeting, the Council complied with the spirit of the advice of the Committee, as well as applicable court decisions, in that both the Council and the public were provided sufficient information to be ensured that the executive session was being held for a proper purpose.”
So there you go. The state doesn’t care if the officials follow the plain letter of the law. They don’t care if officials don’t give the reason they are going into executive session at the time they enter into it. As long as at some point, before or after, they happen to mention the reason, that’s good enough.
I realize different people will read this and come to different conclusions. Some might think this is like prosecuting people for jaywalking. But I see a huge problem with disregarding what seems to be a very straightforward rule that’s necessary to maintain accountability for proceedings that the public is prohibited from.
In my opinion, the potential harm is that if someone shows up for the regular, official meeting, and an executive session is called without a proper reason being given, that person would not be able to tell if the session was legitimate or not. A person should not have to attend the less-formal committee meeting beforehand to be able to understand what’s going on at the regular meeting.
In addition, there is no law in the city’s charter that makes any informal decisions agreed on during a committee meeting legally binding during the regular meeting. A member could state they will vote yes on a resolution during committee, and then vote no during the regular meeting. Therefore it baffles me how the state can consider informal conversation about an executive session during the committee meeting as fulfilling the requirement that the official motion contain a specific reason.
At the end of the day, we have to trust that public officials are being honest about the reasons they go into executive session, and that they actually discuss what they say they discuss. However, I believe requiring officials to state a specific reason verbally before they enter into the session, serves to keep honest people honest. If the reason can be given after the session, will elected officials understand the same imperative to keep the discussion limited?
I am glad to say, however, that when the last executive session was held on March 3, which was around the time the state contacted the city in regards to the issue, Casale and Alderman Jim Martuscello made a rather ostentatious display of giving a very specific reason in the official motion. So at least they are now grudgingly doing the right thing.
Unfortunately, the problem isn’t only with the city.
The New York Coalition for Open Government, an independent advocacy organization, recently surveyed the minutes of 20 area school districts, including the Greater Amsterdam School District, and found the problem of improper motions to enter into executive session is widespread. The report looked at the minutes of area school boards for a six month period at the beginning of 2020.
Some of the findings in the report:
Out of the 158 executive session motions reviewed, 61 % were not in compliance with the Open Meetings Law (96 out of 158).
During the six month period studied only 39% of executive session motions were made correctly (62 out of 158).
61% of the time the public is being left in the dark as to what is happening behind closed doors by motions that do not specifically describe the matter being discussed.
70% of the school districts reviewed received a failing grade for how they handled executive session motions. With 30% of school districts getting none of their executive session motions correct.School boards across New York State hold improper executive session
The coalition cited Amsterdam for 3 sessions out of 11 in the first half of 2020, which in their opinion were not entered into properly, earning a grade of C in their report.
The notes on Amsterdam listed in the report:
The Amsterdam School Board conducted eight of eleven executive sessions properly. Three incorrect executive sessions were held:
– “matters regarding particular personnel” is too vague, need to specify whether to appoint or to discipline;
– “discuss the proposed appointment and/or removal of a particular corporation” – motion should not be stated as “and/or”, which is it?;
But it’s worth noting here, the coalition’s report was based on reading the official minutes of each board.
Just recently, a special meeting was held by the GASD on April 26 where a motion was made to go into executive session, and no reason whatsoever was spoken.
The agenda for the meeting, which is posted online, listed the reason for the session as “discuss the work history/appointment of particular person(s).” The official minutes, also posted on the district website, also describes the motion as containing the reason.
But aren’t the minutes supposed to reflect what actually happened during the meeting? We’ll look at that question in the next article.
For those interested, here are all the documents associated with my request for an opinion from the New York State