How helpful is your policy on executive sessions?
On Board Online • December 11, 2017
By Courtney Sanik
Senior Policy Consultant
"I move that the board go into executive session to talk about, um, district business."
Well, you need to be a little clearer than that. Not only does Public Officers Law section 105 list out the permissible reasons, there have been multiple decisions regarding proper language going into executive session. (See "Motions for entry into executive session - what is required?" by the New York State Association of School Attorneys in the Oct. 15, 2012 issue of On Board, available at goo.gl/nWfVmU .)
Ordinarily, it's not necessary to have a policy on a subject when it's outlined clearly in law and the courts and commissioner have opined on it. The board can just follow the law. But executive sessions are a special case because they are a privilege your board invokes, and local taxpayers deserve adequate notice of the rules that apply. Having a board policy serves as notice of the rules that apply to executive sessions.
To help the public understand the board's lawful use of executive sessions, your board may choose to spell out the eight permissible reasons for an executive session in a policy.
How many of the eight can you think of? The Public Officers Law states a board may enter into executive session to discuss:
1. Matters which will imperil the public safety if disclosed.
2. Any matter which may disclose the identity of a law enforcement agent or informer.
3. Information relating to current or future investigation or prosecution of a criminal offense which would imperil effective law enforcement if disclosed.
4. Proposed, pending or current litigation.
5. Collective negotiations pursuant to Article 14 of the Civil Service Law (the Taylor Law).
6. 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.
7. The preparation, grading or administration of examinations.
8. The proposed acquisition, sale, or lease of real property or the proposed acquisition of securities, or sale or exchange of securities, but only when publicity would substantially affect the value of the property.
You might be wondering: What's up with items 2 and 3? Since when do school boards have "informers" or get involved in "prosecutions"?
The answer is that the Legislature created a list that applies to all municipalities, and some of them are of limited importance in school districts. But it's good to be aware of them all because you never know what a district may face.
Before voting to enter into executive session, board members should think like a lawyer or, better yet, consult one. Small distinctions can be crucial to faithfully adhering to the law. For instance, discussion to terminate an employee for cause would be a proper topic for executive session, while discussion to abolish a position (even if there is only one of that position) would not.
On the other hand, sometimes a decision to go into executive session is pure common sense. For example, an executive session should be used when discussing a specific student's disciplinary case or a tenured teacher's possible 3020-a charge.
Who bears the responsibility to ensure the law is being followed? The school board and its members. That means there may need to be some self-policing if discussions stray. Discussions during executive sessions should be limited to the topic identified as the reason for the session.
What if another topic comes up during an executive session that the board members believe would be proper to discussion in executive session? Best practice would be to exit the executive session convened to discussion topic A, vote on another motion to enter executive session to discuss topic B, and then go back into executive session to discuss topic B.
Now is a good time to review your policy in light of a recent decision from the commissioner of education. After reviewing Application of the Board of Education, 57 EDR Dec. No. 17,147 (2017), NYSSBA's Policy Services has made minor but important clarifications to its model policy, NYSSBA 2330, Executive Session.
NYSSBA's Policy Services also took this opportunity to recommend use of clearer language regarding going into executive session. Please note that both the courts and the state Committee on Open Government have long held that reciting the statutory language verbatim is insufficient!
The principle is easy to grasp: The public should have some idea of what the board will be discussing. For example, the motion could cite "pending litigation" or "the employment history of a particular person." If you've ever been confused about executive sessions, reading NYSSBA's update to its policy should make the subject a little clearer.
If you would like to see NYSSBA's recommended policy on executive sessions, contact us at email@example.com or (800) 342-3360.