April 6, 1993

Ms. Barbara Gref
[Street Address Deleted]
Jeffersonville, NY 12748

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.

Dear Ms. Gref:

I have received your letter of March 21, as well as the materials attached to it.

According to your letter, on February 17, the Board of Trustees of the Village of Monticello entered into an executive session to discuss "a personnel matter". At an ensuing meeting, the agenda included an item involving a change in "the job description of the village attorney (formerly a part-time position) to a full-time position with various new duties", and the Board adopted a resolution authorizing the change without discussion. Following the passage of the resolution, the Mayor indicated that the Board had discussed the issue "at prior meetings" and ekplained that the Board hoped to save money by creating the new position. You added that in the days after the meeting, members of the Board "admitted...that the discussion on changing the village attorney's job description and creating a full-time village attorney's position was discussed in a number of executive sessions..."

You have sought an advisory opinion concerning "the Village Board's lawful ability to hold the discussion on the attorney's job description and creation of full-time village attorney's post in executive session."

In this regard, it is noted at the outset that every meeting must be convened as an open meeting, and that §102(3) of the Open Meetings Law defines the phrase "executive session" to mean a portion of an open meeting during which the public may be excluded. Consequently, it is clear that an executive session is not separate and distinct from an open meeting, but rather that it is a part of an open meeting. Moreover, the Open Meetings Law requires that a procedure be accomplished, during an open meeting, before a public body may enter into an executive session. Specifically, §105(1) states in relevant part that:

"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..."

As such, a motion to conduct an executive session must include reference to the subject or subjects to be discussed, and the motion must be carried by majority vote of a public body's membership before such a session may validly be held. The ensuing provisions of §105(1) specify and limit the subjects that may appropriately be considered during an executive session. Therefore, a public body may not conduct an executive session to discuss the subject of its choice.

Perhaps the most frequently cited ground for entry into executive session is the basis that is the focus of your inquiry, the so-called "personnel" exception. Although it is used often, the word "personnel" appears nowhere in the Open Meetings Law. While one of the grounds for entry into executive session relates to personnel matters, the language of that provision is precise. In its original form, §l05(1)(f) of the Open Meetings Law permitted a public body to enter into an executive session to discuss:

"...the medical, financial, credit or employment history of any person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of any person or corporation..."

Under the language quoted above, public bodies often convened executive sessions to discuss matters that dealt with "personnel" generally, tangentially, or in relation to policy concerns. However, the Committee consistently advised that the provision was intended largely to protect privacy and not to shield matters of policy under the guise of privacy.

To attempt to clarify the Law, the Committee recommended a series of amendments to the Open Meetings Law, several of which became effective on October 1, 1979. The recommendation made by the Committee regarding §l05(1)(f) was enacted and now states that a public body may enter into an executive session to discuss:

"...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..." (emphasis added).

Due to the insertion of the term "particular" in §l05(1)(f), I believe that a discussion of "personnel" may be considered in an executive session only when the subject involves a particular person or persons, and only when one or more of the topics listed in §l05(1)(f) are considered.

When a discussion concerns matters of policy, such as the manner in which public money will be expended or allocated, I do not believe that §105(1)(f) could be asserted, even though the discussion relates to "personnel". In the situation that you described, which dealt in part with the manner in which public moneys would be allocated, the focus of the discussions appear to have involved a review of job descriptions and the creation of a position. Discussion of those issues in my opinion could not have validly been considered in executive session. A discussion of a job description relates to a position and the duties or functions inherent in that position; it would not in my view involve any particular person. Similarly, a discussion pertaining to the creation of a full-time attorney's position involves a matter of policy; it would not deal with any specific individual, but rather with the merits of establishing a new job title.

In short, based upon your description of the facts, I do not believe that executive sessions could appropriately have been held to consider the subjects of your inquiry.

Lastly, due to the presence of the term "particular" in §105(1)(f), it has been advised that a motion describing the subject to be discussed as "personnel"'is inadequate, and that the motion should be based upon the specific language of §105(1)(f). For instance, a proper motion might be: "I move to enter into an executive session to discuss the employment history of a particular person (or persons)". Such a motion would not in my opinion have to identify the person or persons who may be the subject of a discussion. .By means of the kind'of motion suggested above, members of a public body and others in attendance would have the ability to .know that there is a proper basis for entry into an executive session. Absent such detail, neither the members nor others may be able to determine whether the subject may properly be considered behind closed doors.

I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.

Sincerely,
Robert J. Freeman
Executive Director

RJF:jm

cc: Board of Trustees