Complaint filed with NYS DOS/Commitee on Open Government regarding RCSD Board's improper use of "special" meetings, executive session and secret voting.
September 20, 2006
Robert Freeman
Executive Director
NYS Department of State
Committee on Open Government
Via email
Re: Rochester City School District
Dear Mr. Freeman,
I am the founding director of the Rochester Fund for Educational Accountability, a fledgling nonprofit concerned with supporting families and community-based groups engaged in school reform in the Rochester City School District (RCSD). We believe that real, sustainable school reform is impossible without public access to information and decision-making and as such, are devoting much of our initial energies to monitoring district practices and identifying barriers in these areas.
By way of introduction to these barriers, I have attached a recent report, The Frontline of Reform, prepared by one of our partners, the RCSD Parent Partnership Council. The report is specific to barriers as they relate to site-based planning teams and school improvement efforts within the district, but paints a good picture of a district culture that is hostile to transparency and accountability. As the report discusses, years of lax district oversight have resulted in sloppy record-keeping of meeting notices, minutes and voting of these many decision-making bodies, making it difficult to bring examples to the NYS Committee on Open Government for advisory opinions.
However, a recent example that gives shape and focus to these problematic practices and barriers has come to my attention. Ironically, this case involves our elected oversight body, the Rochester Board of Education, but is representative of three major problematic practices observed in nearly every decision-making body in the district. These practices as we see them are: 1) the use of ad hoc/“special” meetings that are not sufficiently publicized or justified to the public 2) the use of Executive Sessions on controversial issues to limit public input and oversight and 3) secret and undocumented decision-making.
This case, detailed on page 2, is also representative of the general district posture on matters of open meetings and freedom of information as well as the typical response received by community members seeking accountability from district officials. As you can see from the attached correspondence from Board President Domingo Garcia and Executive Assistant Linda Dunsmoore, the Board is confident that they have operated in full accordance with the law. We ask for your opinion and clarification on these practices, both specific to this case and as they apply generally to all decision-making bodies in the Rochester City School District.
A summary of the case follows:
1. “Special” public meetings: A special meeting of the Rochester Board of Education was convened on August 9, 2006. As is the case with this type of meeting, it was not publicized on the Board’s schedule of meetings posted on the district website. (see attached meeting schedule) The minutes do not explain the reason for convening this special meeting nor the urgency that required meeting before the next regularly scheduled and publicized meeting on August 17, only 6 days later.
2. Executive Session: Five minutes into this 8/9 special meeting, the Board voted to go into Executive Session, “to discuss Resolution 2006-07: 79 and specific personnel matters.” During Executive Session, the board voted to adopt Resolution 2006-07: 79 and to “approve the 2005-06 Superintendent Evaluation Tool.”(Board of Education Special Meeting Minutes August 9, 2006, attached.)
3. Secret voting: While the voting record for Resolution 79 (5-0) was recorded in the minutes, there is no description of what was voted on. Further, this meeting and its 2 votes are entirely omitted from the Board’s public resolution log, the only mention being the minutes of the special meeting. (see attached resolutions) The Board response to my September 15 inquiry regarding Resolution 79 (attached) curiously stated that Resolution 79 was only advisory and that it was re-issued as another resolution at a subsequent Board meeting, although this is not substantiated in subsequent meeting minutes.
In addition, a motion to “approve the 2005-06 Superintendent Evaluation Tool” was voted on and recorded in the minutes, but received no resolution number nor any mention in the resolution log. While it is certainly possible that this entry was in error and should have read “2006-07 Evaluation Tool,” as the public record now reads, it raises questions about the legitimacy of the Board’s approval of an evaluation tool for the previous academic year, questions that I am confident would have been raised had a scheduled, publicized public meeting been held. For your information, I have attached a recent article from the Rochester Democrat and Chronicle that reports on community outrage about district firings and promotions/demotions. (see attached correspondence and minutes)
For your information, I have attached related documentation for your consideration. I have attached snapshots of the relevant pages from the Board website, which can also be accessed at http://www.rcsdk12.org/BOE/index.htm. Should you need anything further, please do not hesitate to call me a 585-232-8245 or 350-8306. I very much appreciate your assistance in educating the community on these issues.
Sincerely,
Carrie E. Remis
Director
Rochester Fund for Educational Accountability
Advisory opinion from the NYS Open Government regarding the Board of Education's improper use of executive session, ad hoc/special meetings and secret voting.
December 7, 2006
E-Mail
TO: Ms. Carrie Remis
FROM: Robert J. Freeman, Executive Director
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.
Dear Ms. Remis:
I have received your letter and the materials relating to it. Please accept my apologies for the delay in response.
You have raised a series of questions concerning the implementation of the Open Meetings Law by the Board of Education of the Rochester City School District. They focus on:
"1) the use of the ad hoc/'special' meetings that are not sufficiently publicized or justified to the public
2) the use of Executive Sessions on controversial issues to limit public input and oversight and
3) secret and undocumented decision-making."
First, with respect to the "special" meetings to which you referred, you wrote that a particular special meeting was not publicized on the District's website and the minutes of the meeting "do not explain" the reason or urgency for holding the meeting.
In this regard, there is nothing in the Open Meetings Law that focuses on what might be characterized as special meetings. However, that law requires that notice of the time and place be given prior to every meeting. Specifically, §104 of that statute provides that:
"1. Public notice of the time and place of a meeting scheduled at least one week prior thereto shall be given to the news media and shall be conspicuously posted in one or more designated public locations at least seventy-two hours before each meeting.
2. Public notice of the time and place of every other meeting shall be given, to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a reasonable time prior thereto.
3. The public notice provided for by this section shall not be construed to require publication as a legal notice."
Stated differently, if a meeting is scheduled at least a week in advance, notice of the time and place must be given to the news media and to the public by means of posting in one or more designated public locations, not less than seventy-two hours prior to the meeting. If a meeting is scheduled less than a week an advance, again, notice of the time and place must be given to the news media and posted in the same manner as described above, "to the extent practicable", at a reasonable time prior to the meeting. Although the Open Meetings Law does not make reference to "special" or "emergency" meetings, if, for example, there is a need to convene quickly, the notice requirements can generally be met by telephoning or faxing notice of the time and place of a meeting to the local news media and by posting notice in one or more designated locations.
However, the judicial interpretation of the Open Meetings Law suggests that the propriety of scheduling a meeting less than a week in advance is dependent upon the actual need to do so. As stated in Previdi v. Hirsch:
"Whether abbreviated notice is 'practicable' or 'reasonable' in a given case depends on the necessity for same. Here, respondents virtually concede a lack of urgency: They deny petitioner's characterization of the session as an 'emergency' and maintain nothing of substance was transacted at the meeting except to discuss the status of litigation and to authorize, pro forma, their insurance carrier's involvement in negotiations. It is manifest then that the executive session could easily have been scheduled for another date with only minimum delay. In that event respondents could even have provided the more extensive notice required by POL §104(1). Only respondent's choice in scheduling prevented this result.
"Moreover, given the short notice provided by respondents, it should have been apparent that the posting of a single notice in the School District offices would hardly serve to apprise the public that an executive session was being called...
"In White v. Battaglia, 79 A.D. 2d 880, 881, 434 N.Y.S.ed 637, lv. to app. den. 53 N.Y.2d 603, 439 N.Y.S.2d 1027, 421 N.E.2d 854, the Court condemned an almost identical method of notice as one at bar:
"Fay Powell, then president of the board, began contacting board members at 4:00 p.m. on June 27 to ask them to attend a meeting at 7:30 that evening at the central office, which was not the usual meeting date or place. The only notice given to the public was one typewritten announcement posted on the central office bulletin board...Special Term could find on this record that appellants violated the...Public Officers Law...in that notice was not given 'to the extent practicable, to the news media' nor was it 'conspicuously posted in one or more designated public locations' at a reasonable time 'prior thereto' (emphasis added)" [524 NYS 2d 643, 645 (1988)].
Based upon the foregoing, absent an emergency or urgency, the Court in Previdi suggested that it would be unreasonable to conduct meetings on short notice, unless there is some necessity to do so. (emphasis added)
Although the latest annual report of the Committee on Open Government to the Governor and the State Legislature recommends that the Law be amended to require public bodies to provide notice of the meetings on their websites, there is currently no obligation to do so.
Next, you referred to an executive session held by the Board "to discuss Resolution 20006-07:79 and specific personnel matters" and wrote that the Board voted to adopt the resolution and the "2005-06 Superintendent Evaluation Tool" during the executive session.
As you are likely aware, in general, the Open Meetings Law is based upon a presumption of openness. Stated differently, meetings of public bodies must be conducted open to the public, unless there is a basis for entry into executive session. Moreover, the 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 total 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. (emphasis added)
Although it is used frequently, the term "personnel" appears nowhere in the Open Meetings Law. It is true that one of the grounds for entry into executive session often relates to personnel matters. From my perspective, however, the term is overused and is frequently cited in a manner that is misleading or causes unnecessary confusion. (emphasis added) To be sure, some issues involving "personnel" may be properly considered in an executive session; others, in my view, cannot. Further, certain matters that have nothing to do with personnel may be discussed in private under the provision that is ordinarily cited to discuss personnel.
The language of the so-called "personnel" exception, §105(1)(f) of the Open Meetings Law, is limited and precise. (emphasis added) In terms of legislative history, as originally enacted, the provision in question 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 §105(1)(f) was enacted and 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 §105(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 at least one of the topics listed in §105(1)(f) is considered.
When a discussion concerns matters of policy, such as the manner in which public money will be expended or allocated, the functions of a department or perhaps the creation, elimination or functions of positions, I do not believe that §105(1)(f) could be asserted, even though the discussion may relate to "personnel". For example, if a discussion involves staff reductions or layoffs due to budgetary concerns, the issue in my view would involve matters of policy. Similarly, if a discussion of possible layoff relates to positions and whether those positions should be retained or abolished, the discussion would involve the means by which public monies would be allocated. In none of the instances described would the focus involve a "particular person" and how well or poorly an individual has performed his or her duties.
If I understand the subject of the executive session accurately, it involved the elements or characteristics of the method by which a superintendent might be evaluated. If that is so, if the discussion would have focused on the "evaluation tool" that would be used to measure or evaluate the performance of any person serving as superintendent, I do not believe that §105(1)(f) or any other ground for entry into executive session would have applied.(emphasis added) Discussion of an evaluation tool would, in my view, be separate and distinct from discussion of the performance of the incumbent Superintendent. The former in my opinion could not be validly discussed in executive session, while the latter could, for it would focus on a "particular person."
To reiterate, in order to enter into an executive session pursuant to §105(1)(f), I believe that the discussion must focus on a particular person (or persons) in relation to a topic listed in that provision. As stated judicially, "it would seem that under the statute matters related to personnel generally or to personnel policy should be discussed in public for such matters do not deal with any particular person" (Doolittle v. Board of Education, Supreme Court, Chemung County, October 20, 1981).
Moreover, it has been advised that a motion describing the subject to be discussed as "personnel" or the like 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.
It is noted that the Appellate Division confirmed the advice rendered by this office. In discussing §105(1)(f) in relation to a matter involving the establishment and functions of a position, the Court stated that:
"...the public body must identify the subject matter to be discussed (See, Public Officers Law § 105 [1]), and it is apparent that this must be accomplished with some degree of particularity, i.e., merely reciting the statutory language is insufficient (see, Daily Gazette Co. v Town Bd., Town of Cobleskill, 111 Misc 2d 303, 304-305). Additionally, the topics discussed during the executive session must remain within the exceptions enumerated in the statute (see generally, Matter of Plattsburgh Publ. Co., Div. of Ottaway Newspapers v City of Plattsburgh, 185 AD2d §18), and these exceptions, in turn, 'must be narrowly scrutinized, lest the article's clear mandate be thwarted by thinly veiled references to the areas delineated thereunder' (Weatherwax v Town of Stony Point, 97 AD2d 840, 841, quoting Daily Gazette Co. v Town Bd., Town of Cobleskill, supra, at 304; see, Matter of Orange County Publs., Div. of Ottaway Newspapers v County of Orange, 120 AD2d 596, lv dismissed 68 NY 2d 807).
"Applying these principles to the matter before us, it is apparent that the Board's stated purpose for entering into executive session, to wit, the discussion of a 'personnel issue', does not satisfy the requirements of Public Officers Law § 105 (1) (f). The statute itself requires, with respect to personnel matters, that the discussion involve the 'employment history of a particular person" (id. [emphasis supplied]). Although this does not mandate that the individual in question be identified by name, it does require that any motion to enter into executive session describe with some detail the nature of the proposed discussion (see, State Comm on Open Govt Adv Opn dated Apr. 6, 1993), and we reject respondents' assertion that the Board's reference to a 'personnel issue' is the functional equivalent of identifying 'a particular person'" [Gordon v. Village of Monticello, 620 NY 2d 573, 575; 207 AD 2d 55 (1994)].
Next, even when there is a proper basis for entry into executive session, rarely can a board of education vote or take action in executive session. (emphasis added) Although §106(2) of the Open Meeting s Law refers to minutes of executive session when action is taken, only in rare instances may a board of education take action during an executive session. As a general rule, a public body may take action during a properly convened executive session [see Open Meetings Law, §105(1)]. In the case of most public bodies, if action is taken during an executive session, minutes reflective of the action, the date and the vote must be recorded in minutes pursuant to §106(2). If no action is taken, there is no requirement that minutes of the executive session be prepared. Various interpretations of the Education Law, §1708(3), however, indicate that, except in situations in which action during a closed session is permitted or required by statute, a school board cannot take action during an executive session [see United Teachers of Northport v. Northport Union Free School District, 50 AD 2d 897 (1975); Kursch et al. v. Board of Education, Union Free School District #1, Town of North Hempstead, Nassau County, 7 AD 2d 922 (1959); Sanna v. Lindenhurst, 107 Misc. 2d 267, modified 85 AD 2d 157, aff'd 58 NY 2d 626 (1982)]. Stated differently, based upon judicial interpretations of the Education Law, a school board generally cannot vote during an executive session, except in those unusual circumstances in which a statute permits or requires such a vote. (emphasis added)
Those circumstances would arise, for example, when a board initiates charges against a tenured person pursuant to §3020-a of the Education Law, which requires that a vote to do so be taken during an executive session. The other instance would involve a situation in which action in public could identify a student. When information derived from a record that is personally identifiable to a student, the federal Family Educational Rights and Privacy Act (20 USC §1232g) would prohibit disclosure absent consent by a parent of the student.
Lastly, judicial precedent indicates that minutes must include an indication of the nature of action taken. Section 106 of the Open Meetings Law pertains to minutes, and subdivision (1) states that minutes of an open meeting must consist, at a minimum, "of a record or summary of all motions, proposals, resolutions and any other matter formally voted upon and the vote thereon." In Mitzner v. Goshen Central School District Board of Education [Supreme Court, Orange County, April 15, 1993], the issue involved a series of complaints made by the petitioner that were reviewed by the school board president, and the minutes of the board meeting stated that "the Board hereby ratifies the action of the President in signing and issuing eight Determinations in regard to complaints received from Mr. Bernard Mitzner." The court held that "these bare-bones resolutions do not qualify as a record or summary of the final determination as required" by §106 of the Open Meetings Law. As such, the court found that the failure to indicate the nature of the determination of the complaints was inadequate. In the context of your inquiry, I believe that, in order to comply with the Open Meetings Law and to be consistent with the thrust of the holding in Mitzner, minutes must indicate in some manner the nature of the action taken by the Board.
In an effort to enhance compliance with and understanding of the Open Meetings Law, copies of this opinion will be sent to the Board and its Executive Assistant.
I hope that I have been of assistance.
RJF:jm
cc: Board of Education
Linda Dunsmoor
Committee on Open Government
41 State Street
Albany, NY 12231
Phone: (518) 474-2518
Website: www.dos.state.ny.us/coog/coogwww.html
© 2007-09 Rochester Fund for Educational Accountability.
