Motions for entry into executive session – what is required?

On Board Online • October 15, 2012

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 hold an executive session to discuss collective bargaining negotiations with a public employee union. The Committee’s opinions have advised against generic motions to discuss “contract negotiations” and the court in Zehner found the use of the statutory boilerplate (“collective negotiations pursuant to Article 14 of the Civil Service Law”) to be insufficient.

What language might be more appropriate? The Committee’s opinions suggest that a motion should identify both collective bargaining and the particular union involved, e.g. “I move to enter into executive session to discuss the collective bargaining negotiations involving the X union,” and the Zehner decision would tend to support this advice. Thus, boards may be well-advised to reference both collective negotiations and the name of the bargaining unit in motions unless identification of the unit would prejudice the district’s bargaining strategy.

Conclusion

What are the potential consequences of failing to fully comply with the OML with respect to executive session motions? One risk is that a citizen (or school board member, for that matter) will commence a legal action which could potentially result in sanctions if the complaint is sustained. Or, a newspaper may run a story questioning the propriety of the board’s actions, possibly quoting Robert Freeman of the Committee, on whether the board’s action appears consistent with law. Even in the absence of a legal challenge, such articles can erode the public’s trust in the board.

Accordingly, in light of the potential for sanctions and/or negative publicity, it would be prudent for school boards to re-visit with their school attorneys their executive session motion practice to ensure that the language routinely used for these motions will withstand scrutiny if challenged. School attorneys can also assist boards with the drafting and/or review of motions prior to individual board meetings.

Members of the New York State Association of School Attorneys represent school districts and BOCES. This article was written by Erin M. O’Grady-Parent of the Capital Region office of Guercio & Guercio, LLP.