Open and Shut: Challenges to Executive Session Discussions

A recent decision of the New York State Supreme Court for the County of Oneida reflects an apparent trend away from overly technical readings of the Open Meetings Law. There remain, however, pitfalls of which school districts and BOCES should be wary.

In Karam v. Utica City School District, a board of education presented with complaints against its superintendent of schools held executive session discussions which were followed (in public session) by resolutions placing the superintendent on leave and initiating an investigation of the allegations against him. The superintendent’s attorneys responded by arguing, among other things, that the reasons for going into executive session were inadequately detailed, and that the decisions reached by the board of education therefore should be vacated.

The judge in the case issued a decision that has received considerable media attention (see, for example). He noted that although the Open Meetings Law is intended to “open the decision-making process of elected officials to the public while . . . protecting the ability of the government to carry out its responsibilities,” the law lists specific topics that may be discussed out of the public view (that is, in executive session). These include such things as proposed, pending, or current litigation, and matters concerning appointment or the employment status of a particular person. (We observe that when a board meets with its counsel for the purpose of obtaining legal advice, the discussion falls entirely outside the scope of the Open Meetings Law, such that its requirements do not apply at all – but the subject must be the provision of legal advice, which can sometimes be difficult to distinguish from other discussions that boards of education commonly hold with their attorneys.)

The judge in the Karam case also ruled that one day’s notice was sufficient under the circumstances to satisfy the Open Meetings Law requirement (and that a week’s notice was not necessarily or always required by the law).

Turning to the announcement of reasons for going into executive session, the judge dismissed the argument that the wording of the announcement should be the focus. Instead, he stated that if the discussions in executive session actually concerned proper subjects for executive session, the announcement of reasons for going into executive session only needed to identify the general areas or subjects to be considered, and could be “succinct” rather than detailed. We add that if the discussion in executive session ends up straying into non-executive session areas, or areas not encompassed by the statement of reasons for going into executive session, a board should return to public session to conduct the discussion appropriate for public viewing and/or provide a new statement of reasons before returning to executive session.

The judge in Karam observed that, after the superintendent first objected to the executive sessions, the board of education voted again to ratify its decisions, in a meeting that was not alleged to have been in violation of the Open Meetings Law - eliminating any concern from the standpoint of the law. As a practical matter, this means that if a resolution is tainted by Open Meetings Law problems, the problems can sometimes be cured by a later repeat of the vote performed in strict compliance with the Open Meetings Law.

As the Karam case shows, it is possible to navigate Open Meetings law issues by paying appropriate attention to a small number of factors. These include the subjects to be discussed in executive session, the wording of the announcement of reasons for going into executive session, and where needed, the use of remedial measures in the form of resolutions ratifying prior challenged actions. These are areas where school attorneys’ advice can help school districts and BOCES avoid problems that may otherwise prove very difficult to later unravel.

If you have any questions, please contact the office.