Learn the Law

A huge hurdle to enforcing the New York State Open Meetings Law is that when a governing body, land-use board or committee unlawfully meets in private, how would anyone know they broke the law?

There are violations of Open Meetings Law that are easy to prove, such as a vote taken at a meeting that was not properly noticed to the press and public. Courts can — and have — invalidated such votes. Then there are the violations that can easily slide under the radar, such as a majority of board members getting together out of public view to privately deliberate the public’s business and make decisions that they never formally take a vote on.

Ensuring that a body is adhering to Open Meetings Law requires one of two things: a full complement of board members who understand and readily follow this important transparency law, or a whistleblower who will publicly call out colleagues or employers when they break the law.

In Southampton Village last week, Mayor Jesse Warren was that whistleblower when he revealed the range of matters that were inappropriately included on a March executive session agenda. This included a reality TV show’s request to use the village seal, a dispute over where trash compacters should be located and delays in their installation, and improvements to the Agawam Park fountain, among other matters that should have been publicly discussed from the get-go.

During the course of a public meeting, a board may vote to enter into executive session, a vote that excludes the public from the room and results in the video cameras being turned off. However, the board may only do so for a narrow set of purposes under the law, such as discussing a collective bargaining agreement or personnel matters. Boards also can exclude the public when seeking legal counsel from their attorney, but this exception to Open Meetings Law very specifically pertains to receiving legal advice — it is not a free pass to deliberate in private as long as someone who passed the bar is present. When the attorney is not an active participant in the discussion, the exemption ceases to apply.

Trustees pointed the finger back at the mayor and the village attorney for not taking greater control of the agenda and advising the board that it was potentially in violation of the law. After all, the mayor presides over Village Board meetings. But, then again, the mayor, of late, has been on the wrong side of a board divided, 4-1, and the village has apparently exercised a policy allowing any board member to request that a matter be added to an executive session agenda. Plus, a vote to enter into executive session and a vote to go back into public session both require a board majority — and it is every board members’ responsibility to know and follow Open Meetings Law.

To that point, the mayor admonished the board, particularly Deputy Mayor Gina Arresta, several times that executive session was not the proper forum to discuss trash compacters. When the board finally agreed to go back into public session and turn the cameras back on, the public had already vacated Village Hall under the impression that the board had no more matters on its agenda that night that were meant for the public’s ears and eyes.

Also notable is that Southampton Village officials appear to believe that the subject of “contracts” offers them wide berth to discuss matters in executive session. According to the Committee on Open Government, the only “contractual matters” exception that exists pertains to collective bargaining.

Thursday evening, April 13, the Village Board of Trustees agenda calls for requiring members of that board as well as land-use boards to take Open Meetings Law training annually. The Village Board should adopt this resolution unanimously and enthusiastically. The village government has nothing to lose by mandating this training and the public has much to gain.

As Heather E. Murray, the managing attorney of the Local Journalism Project for the Cornell Law School First Amendment Clinic, said last week, “The right of the public to attend meetings of a public body and watch the decision-making process is basic to our society.”