Regularly scheduled “executive sessions” are illegal. There’s no such thing as a “personnel” exception in the law that says all meetings of government bodies must be open to the public. A new provision of the open meetings law requires boards to make available to the public before a meeting all documents that the board will be talking about at the meeting.

These were among the items discussed by Robert Freeman, executive director of the state Committee on Open Government, at a 90-minute forum Monday night at Riverhead Free Library.
Freeman also went over the provisions of the state’s freedom of information law, which governs the public’s right to access records maintained by the government.

Freeman is the only person ever to have served in the capacity of executive director of agency, a division of the N.Y. Department of State in Albany, since its inception. An attorney, he quotes statutes chapter and verse, court decisions by their citations, and manages somehow to keep the discussion fast-paced and even entertaining.

He welcomed questions from the audience, which included wide representation from Riverhead Town government and civic groups.

“What I hope you leave with tonight is the basic notion that FOIL and the open meetings law are based primarily on common sense,” Freeman told the audience of about 50 people.

“All they really say is that everything is open, except to the extent that disclosure would hurt, significantly, somebody in terms of an invasion of privacy, or hurt the government in terms of its ability to do its job well on behalf of the public, or occasionally hurt a private company vis a vis the competition,” Freeman said.

“Disclosure is the general rule.”

The committee on open government is an advisory body, not an enforcement agency. Freeman and the committee write memoranda and advisory opinions, answering questions posed by any member of the public. Their opinions do not have the weight of law, unless codified by the legislature or adopted as a ruling of a court. Freeman said courts “pay attention to us 90 percent of the time” and the State Legislature “occasionally.”

Among the specific topics discussed at the forum, in response to questions from members of the audience:

Written minutes (though not a verbatim transcript) should be kept of all meetings, according to advisory opinions of the state comptroller, the state attorney general and the Committee on Open Government; this is not codified or case law, however;

Meetings required by law to be open to the public must be held in a room that can reasonably accommodate members of the public, including persons with disabilities, interested in attending and observing;

Anyone has the right to make an audio or video recording of any public meeting, so long as the recording equipment is not obtrusive;

All records scheduled to be discussed during open meetings, such as resolutions prepared in advance of the meeting, should be posted on the town’s website prior to the meeting “if feasible” and/or made available to the public at or before the meeting;

In order to close the doors of a meeting to the public, to enter “executive session,” a motion must be made that states one of the eight specific grounds for going into an executive session, it must be seconded and carried by a vote of the majority of the members of the board — whether or not the full number of members is present.

The idea that all discussion of “personnel” is off-limits in a public meeting is “malarky,” Freeman said.

“Personnel? Forget the word There’s no law that says that,” he said.

He used a hypothetical “personnel” discussion by a school board discussing the elimination of an art teacher position in the elementary school for budget reasons. This would not be an executive session discussion, he said, because it’s a policy discussion — even though there might be one art teacher in one elementary school.

“How do we as the board the governing body of a multimillion dollar public coprporation choose to allocate public money? Is art really important to the education of our kids? These are policy questions that should be discussed in a public meeting,” Freeman said. “It is ‘personnel’ but there is no legal basis for closing the doors.”

On the other hand, he said, a discussion of whether or not to give a particular teacher tenure would can be held in executive session, Freeman said, because the focus of the discussion in that case would involve a particular person.

Freeman cited the words of Justice Louis Brandeis, penned nearly a century ago: “Sunshine is the best disinfectant.”

Open government leads to more participation by citizens, leads to better preparation by elected and appointed officials, and leads to better government, Freeman said.

2012_0424_freeman_walterRiverhead Town government was well-represented at the meeting. In attendance were the town supervisor and three council members, the chairwoman of the board of assessors the chairman of the planning board, the chairman of the ZBA and two of its members, the deputy supervisor, the chief of police, the town attorney and a deputy, the planning director, the deputy town clerk, the town financial administrator, the superintendents of the water and sewer districts, and the supervisor’s chief of staff.

One school board member, Willie Hsiang, attended the meeting, along with assistant superintendent Joe Ogeka.

Daniel Kulp, president of the board of trustees of Riverhead Free Library, also attended, as did the library’s executive director, Lisa Jacobs.

Civic groups were represented by Dominique Mendez and Phil Barbato, cofounders of the Riverhead Neighborhood Preservation Coalition, Sid Bail, president of the Wading River Civic Association, and Georgette Keller and Angela DeVito of the Jamesport-South Jamesport Civic Association.

“I think this was a good opportunity to have some good discussion of these issues,” Riverhead Supervisor Sean Walter said. “It was very educational.” He said he asked all town department heads to attend the meeting, especially to gain information about how to best comply with the state’s records disclosure laws.

The forum was sponsored by RiverheadLOCAL.com.

Editor’s note: A previously published version of this story incorrectly identified the position of assistant superintendent Joe Ogeka.

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