Challenge on Open Meetings Law
Concerned about the East Hampton Town Board’s frequent use of executive sessions to discuss matters out of the public eye, two East Hampton Town residents who regularly attend board meetings sought and received an opinion on the legality of the sessions from the New York Department of State’s Committee on Open Government.
In a response dated Sept. 27, the committee outlined the specific instances in which a board may use executive session, addressing the situations cited in the request for an opinion, but did not weigh in specifically on whether the board has been acting properly.
Rona Klopman and Sue Avedon, who are both members of the East Hampton Town Democratic Committee but were acting independently, sent an inquiry in mid-July to Robert J. Freeman, the committee on open government’s director.
In a cover letter, Ms. Klopman wrote that, after attending board meetings since 2009, “I have become concerned that the East Hampton Town Supervisor, William Wilkinson, who sets the agenda, may be violating the open meetings law.”
“Having open meetings at which the public can be present is a very important part of our democracy, so that should be the rule,” Ms. Avedon said on Tuesday.
She acknowledged that there are exceptions, but, she said, “it’s been my feeling with this administration that they have gone way beyond those expectations. That deprives the public of its rights.”
Ms. Avedon said she heard Mr. Freeman give a talk about the open meetings and freedom of information laws and that “it really prompted me to think about how important the issue was.”
“When we started to see what seems to be a pattern in our town, the red flag went up.”
Ms. Klopman said that a reporter’s questioning in 2011 of an executive session the board wanted to hold to discuss notices of violation received from the State Department of Environmental Conservation — a session canceled after input from the town attorney — led her to look into what topics may legally be discussed in private. Although they include “discussions regarding proposed, pending, or current legislation,” case law and advisory opinions have indicated that the abstract possibility of a lawsuit does not warrant a discussion out of the public eye.
That situation was one of the examples sent to the committee on open government. Another was the listing on board work session agendas of an executive session.
Because the open meetings law prescribes a procedure that must be undertaken during a public meeting before an executive session may be held, including specifying the grounds for entering into the session, and a majority vote to do so, “ . . . it has been consistently advised that a public body [. . .] cannot schedule or conduct an executive session in advance of a meeting,” Camille S. Jobin-Davis, the open government committee’s assistant director, wrote in the letter to Ms. Klopman.
As to the litigation exception to public discussion, Ms. Jobin-Davis said, “we believe that the exception is intended to permit a public body to discuss its litigation strategy behind closed doors, rather than issues that might eventually result in litigation.”
“Under a broader construction, as the court points out, almost every issue could be discussed in executive session, which would be contrary to the intent of the law,” she wrote.
On another example provided, an executive session to discuss the potential sale of the town’s Fort Pond House property in Montauk, Ms. Jobin-Davis said that “under particular circumstances,” the sale of real property may be discussed in an executive session. However, she said, the applicable provision in the law says that discussion may take place “only when publicity would substantially affect the value thereof.”
“My impression has been that executive session has been called frequently, in a way that is not in keeping with the open meetings law,” Ms. Avedon said on Tuesday.
The town board was copied on the state agency’s response to the inquiry. John Jilnicki, the town attorney, did not respond to a request for comment yesterday.
But Ms. Klopman said she “was really glad to see that boardwatching kind of pays off. Because it’s been going on for a while, and they haven’t responded to anybody saying, ‘I don’t think this is legal.’ ”
Mr. Wilkinson often cites his corporate background, she said. “It’s never too late to learn that not everything operates in that way,” she said. “There’s always an opportunity to learn that what you’re doing is not exactly right.”
After a work session on Tuesday, the board held an executive session to discuss a personnel matter, then resumed an open session to vote on an action regarding two employees. “Executive session” was, however, not listed on the meeting’s agenda, as it has been previously.