VIOLATIONS OF OPEN MEETINGS LAW PERSIST AT COMMACK SCHOOL DISTRICT

As explained below, the Executive Sessions held by the Commack School Board on June 12 and May 22 violated the Open Meetings Law. The Board needs to realize its current counsel of over 40 years is no longer capable of providing objective and impartial guidance.  The District’s interests would be better served by a new law firm which is capable of providing unbiased counsel that is not tainted by pre-existing relationships within the Board or the District.    

At the June 12 meeting, the Board entered into Executive Session, to discuss, among other things, salary increases for various Administrative staff and nonaligned/unaffiliated personnel, etc.  Although I objected based on the fact that the discussions were to involve more than one person, counsel for the district disagreed and advised that the basis was proper.

However, according to an opinion from the Committee on Open Government, in situations where the discussion does not involve or focus upon a “particular person” or individual performance there is no legal basis for entry into executive session.  See Opinion at http://docs.dos.ny.gov/coog/otext/o3537.htm   The following court case also confirms same - Weatherwax v. Town of Stony Point,  97 A.D.2d 840, 468 N.Y.S.2d 914 (2d Dep’t 1983)(finding town board held illegal executive session because policy decision applied equally to all persons who entered into class of retirees discussed. “Thus, it cannot be said that the purpose of the meeting was to discuss “the medical, financial, credit or employment history of a particular person”).  https://drive.google.com/file/d/0B3cbjRc1NY_pS1FuM1oyLXVxU00/edit?usp=sharing

Thus, to the extent the June 12 Executive Session was entered into for the purpose of discussing raises to various groups of District employees, and not a particular employee, it was conducted in apparent violation of the Open Meetings Law.

Similarly, on May 22, 2014, under the guidance of counsel, the Board went into Executive Session this time for the announced reason of discussing pending litigation in regard to the Marion Carll Farm suit.  However, present for said discussion was counsel for the plaintiffs (i.e. the Carll Heirs) as well as a non-party who was potentially interested in purchasing the property. 

It appears that this meeting was also held in violation of the Open Meetings Law because it shielded discussions between the Board and a private litigant from the public, the same conduct denounced in the case of Concerned Citizens to Review Jefferson Valley Mall v. Town Board, 83 A.D.2d 612, 613, 441 N.Y.S. 2d 292 (2d Dep't 1981), appeal dismissed, 54 N.Y.2d 957, 429 N.E.2d 833, 445 N.Y.S.2d 154 (1981):

“The purpose of the Open Meetings Law is declared in Section 95 of the Public Officers Law as follows: ”It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy. The people must be able to remain informed if they are to retain control over those who are their public servants. It is the only climate under which the commonwealth will prosper and enable the government process to operate for the benefit of those who created it.“ Thus, to effect its purpose subdivision (a) of section 98 provides: ”Every meeting of a public body shall be open to the general public, except that an executive session of such body may be called and business transacted thereat in accordance with section ninety-five of this article.“This general mandate is not without exception, however, as section 100 (subd 1, par d) permits a public body to go into executive session for the purpose of discussing proposed, pending or current litigation, and it is this exception upon which the town board and Darswan purport to rely. We cannot agree. The purpose of the foregoing exception was to enable a public body to discuss pending litigation privately, without baring its strategy to its adversary through mandatory public meetings (see comment, New York Open Meetings Law: A Critical Evaluation, 41 Albany L Rev 329, 343). Thus the provision should not be construed to shield private discussions between a public body and a private litigant from the general requirement that public business be performed in an open and public manner (Public Officers Law, § 95). To so hold would be to defeat the declared purpose of the article.”See https://drive.google.com/file/d/0B3cbjRc1NY_pdnRtNllfTGM5UTQ/edit?usp=sharing