When is executive session discussion confidential? Debate gets heated over alleged leaks

What happens in Vegas… The old maxim may or may not apply to what happens in executive sessions of the town board, as members today got into an argument over who has — or hasn’t — been leaking discussions held behind closed doors to members of the public and town employees.

The state Open Meetings Law allows public bodies to enter into executive session to discuss certain topics, enumerated in the statute. But does any law prohibit members from divulging those executive session discussions to others?

Tempers flared at the end of the town board work session this morning, when a motion to enter into executive session was met with resistance from Councilwoman Catherine Kent, who said she was concerned that matters discussed in executive session have been divulged outside of the closed-door meetings.

“I think we have a few legal things to work out before we go into exec,” Kent said.

Kent didn’t name names but it quickly became apparent she — and Supervisor Laura Jens-Smith, who agreed with her — were talking about Councilwoman Jodi Giglio.

“It has come to my attention that matters that have been discussed in executive session have been disclosed to the public and I think that there’s an expectation in executive session that matters will not be discussed outside of executive session,” Jens-Smith said. She said board members should have confidence that executive session discussions “will not come out of there.”

She said information from a personnel discussion in a recent executive session was shared with people outside of the executive session.

Jens-Smith asked town attorney Robert Kozakiewicz to explain the requirements of the state Open Meetings Law to the board.

Kozakiewicz told board members he’d reiterate what he wrote in a memorandum to the board on the topic last January. The law allows the board to discuss certain things in executive session and it also exempts certain topics from the requirements of the Open Meetings Law, Kozakiewicz said. It generally doesn’t mandate closed-door discussions, he said.

Items that may lawfully be discussed in a closed-door meeting pursuant to the Open Meetings Law are not “automatically confidential,” Kozakiewicz said.

The law is not completely clear, he said, but “executive session does not equate to confidentiality.”

After being peppered with questions by the supervisor, who argued that the town ethics code prohibits divulging executive session discussions outside of executive session.

“Can I suggest an alternative approach rather than the back-and-forth of the Socratic method here?” Kozakiewicz asked. “I feel like I’m in first year law school.”

The town attorney said the town board can adopt rules stating specifically that discussions held in executive session shall not be divulged outside of executive session.

But the supervisor said she believes the existing ethics code already does that.

“When we vote to move from an open meeting to an executive session should we know that matters that we discuss related to these items will not be disclosed? We have nothing in the books right now that addresses this?” Jens-Smith asked, again seeking clarification as to what is confidential and what is not.

“Where’s the comfort level?” Councilman James Wooten asked. “If that’s the case, then we should only go into exec session to discuss litigation,” he said.

“If we’re going into exec, as a board member I’m assuming it’s because those items are confidential,” said Kent. “We’re elected by the public and they put their trust and confidence in us. We should act in a professional manner and should not discuss things outside of executive session.”

“Just because something is in executive session doesn’t make it confidential,” Kozakiewicz said.

“Can you tell me something that’s not confidential?” Jens-Smith asked.

The town attorney said he needed time to do additional research.

“It’s ground us to a halt here,” Jens-Smith said. “We’re sitting here ground to a halt about this. There are things being discussed and I know, Jodi, that you’ve discussed things in executive session outside of executive session,” she said.

Giglio accused Jens-Smith of doing the same thing.

“The crux of this is we have an employee that’s retiring and we are looking to replace him, that I have a difference of opinion as to who we should be hiring. When we ended executive session you, supervisor, said ‘I’m going to talk to this one, I’m going to —’”

Jens-Smith cut her off. “This right here — this is the problem I’m having right here,” she said, addressing the town attorney.

“It’s totally unethical,” Wooten said to Giglio. “I don’t give a crap how you feel. There’s things in executive session — despite whether it rubs you the wrong way, that’s the way it is. That’s democracy. There’s certain things I don’t like and I don’t go around screeching to the world —”

“Yes you do,” Giglio told him.

“No I don’t,” he retorted.

“Yes,” she answered.

“No.”

“Yes.”

“No. I vote up there,” Wooten said, gesturing to the dais. “But I don’t go around trying to undermine the process,” Wooten said.

Jens-Smith reiterated her belief that the town’s code of ethics already prohibits divulging executive session discussions.

“If people are doing that, then they need to be held accountable,” Jens-Smith said.

“Then file an ethics complaint as you have done in the past time and time again,” Giglio said.

“There’s a trust factor here,” Kent said. “The town has to trust us and we should be able to trust one another. We’re five people. We should be able trust one another and work together for the betterment of Riverhead,” Kent said.

The meeting ended without resolution of the issue — and without the board going into an executive session to discuss the items on the agenda concerning the hiring of three employees, contract negotiations with sPower and potential litigation with the Suffolk Industrial Development Agency.