A local school district that shall go nameless (but its initials are Carthage Central School District) says it is doing all that it can to regain the trust of district residents after a series of unfortunate incidents and recent unpleasantness.
To that end, the school board goes into executive session during its regular monthly meetings to discuss sensitive matters. And to legally close its meetings to the public, the board on its monthly agenda provides the following paragraph, with words gleaned from the state’s rules on open meetings:
“Motion to go into executive session to discuss the medical, financial, credit or employment history of a particular person or corporation, or matters leading to appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation.”
Sounds legal, right? Well, to me it didn’t quite pass the smell test. However, since I’ve been a journalist for only 38 years, I’m no expert. So I sent this quote to Bob Freeman, the executive director of the Committee on Open Government, who is paid by New York taxpayers to answer such questions. He writes:
“No, the boilerplate recitation is not ‘legit.’ A motion to conduct an executive session must be sufficiently focused to enable the public to believe that there is, in fact, a proper basis for conducting an executive session. Recent judicial decisions specify that to be so.”
He cited a court ruling last year:
“The Court affirmed Zehner v Board of Education of Jordan-Elbridge Central School District (Onondaga County, December 7, 2010), stating that the Supreme Court:
“… properly determined that respondent violated the Open Meetings Law on three occasions by merely reciting statutory categories for going into executive session without setting forth more precise reasons for doing so. Given the overriding purpose of the Open Meetings Law, section 105 is to be strictly construed, and the real purpose of an executive session will be carefully scrutinized ‘lest the … mandate [of the Open Meetings Law] be thwarted by thinly veiled references to the areas delineated thereunder.”
On the Committee on Open Government website, Freeman writes: “A violation of the Open Meetings Law occurred, the court determined, due to the Board’s failure to ‘identify with particularity the topic to be discussed,’ citing previous decisions, ‘since only through such identification will the purposes of the Open Meetings Law be realized’ (see e.g., Daily Gazette v. Cobleskill; Gordon v. Monticello).”
Freeman is considered a wet blanket by many government officials who don’t want to be restricted from going behind closed doors because a topic might be uncomfortable. For instance, when a school board is working on its budget and decides it must eliminate 15 jobs, board members assume that “jobs” are “personnel” and thus must be discussed privately. Nope, that discussion must be held in the full light of day.
But Freeman is a reasonable person. He further writes: “It is impossible to predict the circumstances surrounding every executive session, and this office has neither the resources nor the inclination to specify language in every situation. Accordingly, we encourage members of public bodies to share more information about their intended topic for discussion in executive session, in a manner that clarifies that the discussions are reasonably 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.”
Here’s a guess: In trying to be more official after several months of chaos, Carthage has inadvertently become the poster child for improperly called executive sessions. But singling out one district misses the point; a lot of other districts are doing the same thing, just in more subtle ways.
Here is a gentle reminder to all elected officials, but school boards in particular: If you are routinely going into executive session, you should take the time to review state law. And maybe even drop a line to Bob Freeman firstname.lastname@example.org clarification.
Because if you embrace vagueness, any member of the public — particularly those irritating folks who might have a bone to pick with you — can take you to court and slam dunk you.