Closed session requires specific reason

Under New York law, school boards are required to deliberate in public. The Legislature set out the rationale for this requirement in its introduction to the Open Meetings Law.

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 (New York State Public Officers Law § 100).

However, since some information needs to remain confidential at least temporarily, state law provides eight categories of exemptions to the Open Meetings Law. If any of these eight fits the matter to be discussed, a public body may vote to exclude the public and hold the discussion behind closed doors:

a. Matters which will imperil the public safety if disclosed;
b. Any matter which may disclose the identity of a law enforcement agent or informer;
c. Information relating to current or future investigation or prosecution of a criminal offense which would imperil effective law enforcement if disclosed;
d. Discussions regarding proposed, pending or current litigation;
e. Collective negotiations pursuant to article fourteen of the civil service law;
f. 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;
g. The preparation, grading or administration of examinations; and
h. The proposed acquisition, sale or lease of real property or the proposed acquisition of securities, or sale or exchange of securities held by such public body, but only when publicity would substantially affect the value thereof.

Any time a board of education chooses to go into executive session for one of these reasons, however, the board is required to tell the public specifically what is being discussed out of earshot of the citizenry.

The courts have said repeatedly that simply quoting the relevant exemption is not enough. The board must identify “with particularity” the reason for keeping the public from hearing their deliberations.

Inadequate reasons for closed sessions

As cases alleging misuse of executive sessions have reached the courts, rulings have singled out language that cannot be used to justify meeting behind closed doors. Courts have said, for example:

  • An executive session held to discuss “proposed, pending or current litigation” must identify the specific litigation and not merely recite statutory language.
  • “Fear that litigation may result” does not justify an executive session.
  • Personnel lay-offs are primarily budgetary matters and cannot be discussed in closed session under exemption (f) for personnel matters.
  • An executive session cannot be used to discuss policies such as provision of post-retirement health insurance or the closing of a school.
  • When discussion within an executive session leads to consensus, that consensus constitutes final action which must be recorded and disclosed in the official minutes of the executive session.
  • “Personnel issues” is not a legitimate reason for a board to exclude the public from being present during the discussion.

One district’s bad example

The school district in which I live, Bainbridge-Guilford, is notable for its lack of transparency. Minutes of meetings specify topics discussed and votes taken in public session, without indicating anything of the substance of the discussion.

Moreover, the minutes refer to attachments that are not attached to the minutes. As a result, anyone not at the meeting would have no way of knowing what the elected board members are doing on their behalf. (One notable exception: the minutes are careful to say when there were refreshments at the meeting.)

As I discussed previously, the board’s posted policy calls for an executive session at every meeting. Out of curiosity, I checked the minutes of the last six Bainbridge-Guilford school board meetings to see what was discussed in those sessions. Compare the information from their minutes with the requirements of the state Open Meetings Law, I think you’ll agree that the board is not in compliance with state law.

The Feb. 2, 2012 school board meeting began at 6:32 pm. The board met in closed session from 6:33 to 7:23 pm to discuss “particular personnel issues, negotiations, and CSE recommendations.”

The Jan. 19, 2012 school board meeting began at 6:38 pm. The board met in closed session from 6:39 to 7:36 pm  to discuss “particular personnel issues and contract negotiations.”

The Jan. 4, 2012 school board meeting began at 6:32. The board met in closed session from 6:33 to 7:42 discuss “particular personnel issues.”

The Dec. 1, 2011 school board meeting began at 6:28 pm. The board met in closed session from 6:29 to 7:29 discuss “particular personnel issues.”

The Nov. 17, 2011 school board meeting began at 6:40 pm. The board met in closed session from 6:41 to 7:36 discuss “particular personnel issues.”

The Nov. 3, 2011 school board meeting began at 6:28 pm. The board met in closed session from 6:39 to 7:39 discuss “particular personnel issues.”

Why closed sessions are a big deal

The issues that the local board of education is (or should be) wrestling with will have a huge impact on the community. For one thing, the school is one of the major employers. For another, the quality of the school program has a huge impact on property values. Just those two factors mean that folks without school age children have a vested interest in what goes on in schools.

In the absence of journalists to interpret events, local people may not know why they should care about teacher evaluations or the district’s technology use policy. What they don’t know may not hurt them, but it could very well hurt the schools.

It’s entirely possible that what looks like underhanded machinations is merely a set of well-meaning people doing the same thing their predecessors have done for a couple decades. But believe this ex-reporter when I say that nothing creates distrust and suspicion like the impression of a cover-up.

If there was ever a time when the public school districts needed the support of their constituents, it’s today.

Closed door meetings about undisclosed topics don’t help one bit.