The term “Executive Session” has been thrown out alot during Board Meetings of late. It has been particularly important surrounding the debate on whether it is appropriate for the Board to move into Executive Session for purposes of deciding and discussing which of the 13 candidates should fill the vacant seat. Cronm has done their research. According to what we have found, the Board has no authority to discuss and decide on who to fill the vacant Board seat in Executive Session. Such a discussion must be done during an open meeting and with public input. Anything different, will run afoul of the Open Meetings law and subject any decision by the Board to legal action and/or invalidation. See definition of Executive Session below. CRONM also wrote to the Board on this issue providing Board with various advisory opinions on the topic of whether discussing to fill board vacancy could be done in executive session. Letter sent to Board is attached along with advisory opinions. Please contact CRONM if you have any questions.
According to §105 of the Open Meeting Law, “Conduct of Executive Sessions;” an executive session is a portion of a school board meeting that is not open to the public. It is permitted only for a limited number of specific purposes that include the following subjects:
a. Matters which will imperil the public safety if disclosed.
b. Any matter that may disclose the identity of a law enforcement agent or informer.
c. Information relating to current or future investigation or prosecution of a criminal offense that would imperil effective law enforcement if disclosed.
d. Discussions involving proposed, pending, or current litigation.
e. Collective negotiations pursuant to Article 14 of the Civil Service Law.
f. 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.
g. The preparation, grading, or administration of exams.
h. The proposed acquisition, sale or lease of real property or the proposed acquisition, sale, or exchange of securities, but only when publicity would substantially affect the value of these things
See Pub. Off. Law § 105 (a-h).
Because it can be convened only upon a majority vote of the board in an open public meeting, a school board cannot schedule an executive session in advance (e.g. Executive Session at 6:30 p.m. and Public Meeting at 7:00 p.m.) (NYS Department of State, Committee on Open Government OML-AO-3339, July 23, 2001). However, the meeting’s agenda can indicate that there is a “Proposed executive session, subject to Board approval” or that “It is anticipated that the Board will act upon a resolution to convene an executive session (NYS Department of State, Committee on Open Government OML-AO-2426, Nov. 23, 1994). The motion to go into executive session must identify the subject matter of the executive session with particularity (Zehner v. Board of Educ. of Jordan-Elbridge 2015 New York State School Boards Association, Inc. Latham, NY 19 CSD, 29 Misc.3d 1206 (Onondaga Co. 2010); Gordon v. Village of Monticello, 207 A.D.2d 55 (3rd Dep’t 1994), rev’d on other grounds, 87 N.Y.2d 124 (1995); NYS Department of State, Committee on Open Government OML-AO-3478, June 26, 2002). It is insufficient to merely regurgitate the statutory language such as “discussions regarding proposed or pending litigation,” without identifying the particular litigation (Daily Gazette v. Cobleskill, 111 Misc.2d 303 (Sup. Ct. Schoharie Co. 1981)); NYS Department of State, Committee on Open Government OML-AO-5259, Mar. 8, 2012; OMLAO-3654, July 10, 2003).