Creating a Fair Executive Session

Posted on 30 July 2009

The Bridgehampton School Board’s recent questions about executive sessions presents a great teaching opportunity for publicly elected boards throughout the area. The standards of executive session should be upheld and new board members, and old ones, should be fully aware of their responsibilities to the public.

In essence, the board works for the public. They are doing the public’s business. This business must be conducted in front of the public and the reasons to legally call an executive session, and exclude the public from the discussion, are very narrow.

We respect Bridgehampton school board president Elizabeth Kotz’s request for clarification on executive session parameters, and we also respect the district clerk for reminding Ms. Kotz that she and the board need to be more specific about the reason the executive session is being called. Several other local board leaders should take note. The state’s Public Officer Law clearly states that before entering an executive session a motion “identifying the general area or areas of the subject or subjects to be considered” must be mentioned. Too often boards use the words litigation, acquisitions or personnel as an excuse to go into executive session. To say a board will discuss any of these three items without naming the subject to be discussed doesn’t uphold the letter — or the intent —  of the law.

If the board intends to examine a case in litigation, for example, the public has every right to know who is suing whom and what are the alleged charges brought against the board or what charges the board is bringing against another party. When it comes time to craft the strategy of the case, the board is entitled to reconvene in an executive session because the disclosure of this information could jeopardize the case.

Similarly, when the board defines the needs of a particular position or discusses the creation of a new post in the school district or municipality, the board is obligated to hold this discussion under the scrutiny of the public. When the board must consider the employment history of a particular employee or eligibility of a particular candidate for a position, it is appropriate to call an executive session to order.

The Bridgehampton School Board’s action, however, isn’t an isolated event. It is representative of a problem that affects virtually every board we have sat before. Although we don’t believe good men and women intentionally break the laws of going into an executive session, the convenience of having frank discussions about often controversial issues in private, and away from the prying eyes of the community, is often much more attractive to boards then conducting these affairs in public.

Anytime a government or governing body disenfranchises the people, it is contributing to its own exclusivity. It is excluding the public from a discussion that should be held in front of them on issues they should be privy to in order to have an informed and just opinion. The public elects members of the board to not only represent their views, but also to educate.

We encourage elected officials to brush-up on the rules of conduct for open meetings and calling an executive session and we recommend that those who still are unclear about these responsibilities call Robert Freeman at the New York State Department of State’s Committee on Open Government. Clarification is only a phone call away.

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