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Elected officials, we're talking to you: Start the year on a transparent note

Elected officials, we're talking to you: Start the year on a transparent note

One of area where boards frequently get into trouble with law, public is executive sessions
Elected officials, we're talking to you: Start the year on a transparent note
Photographer: Shutterstock

Municipal government boards are just settling in for the new year, some with new leadership and some with new members.

And with a new year comes the opportunity to remind board members and their constituents about the state’s Freedom of Information Law and Open Meetings Law -- the government’s obligation to be transparent to its citizens and about the citizens’ right to demand openness.

We won’t go into the entire law. That’s available at the state Committee on Open Government’s website. Or just Google “Committee on Open Government” and it will be the first listing that appears.

But we can go over some areas where boards traditionally trip up, either on purpose to keep government operating in secret or because they’re not fully aware of their responsibilities.

One area where boards frequently get into trouble with the law and the public is executive sessions, the meetings where they get to discuss things in private.

We saw in Niskayuna last week an example of a board that at first appeared not to be aware of one important rule regarding these closed-door meetings, but which quickly corrected itself and vowed not to make the same mistake again.

During a meeting, the board voted to go into executive session. They can meet in private as long as they convene the meeting in a public session and provide a reason for the session based on criteria spelled out in the state’s Open Meetings Law.

Three of those reasons relate to law enforcement investigations. Another allows for discussion of “proposed, pending or current litigation.”

Notice the law doesn’t say “possible litigation.” A lot of boards will use that as an excuse for meeting behind closed doors. If possible litigation were a legitimate excuse, they could meet in secret about just about anything.

Another reason they can meet in private is for collective bargaining negotiations. Another is when the discussion relates to someone’s financial, medical or employment information or matters relating to hiring, appointing, promoting or disciplining of individuals. Grading of exams and discussions relating to the acquisition of real property are the remaining two exemptions.

The Niskayuna board said it was going into the session to discuss “personnel.” That’s a traditional catch-all phrase that many boards mistakenly believe is a legitimate excuse for going into a executive session. It’s not. Our reporter asked the town attorney, Robert Hess, to be more specific. He found and cited the proper statute and vowed to use that specific wording when entering future executive sessions, in accordance with the Open Meetings Law.

That’s the kind of response you want from a public official. Vow to follow the law, and if there’s a question, look into it and get it right.

Boards can vote during executive sessions on everything except spending public money. Any action they take must be made available to the public afterward.

Boards also have to provide minutes of open-sessions, but only summaries of motions and proposals and any matters that were voted upon, along with the actual vote. Minutes aren’t transcripts, so don’t expect them to be.

There’s no requirement that boards allow the public to speak at their meetings. 

Many boards do, but will often limit speakers to a time limit to keep things moving along. They can do that.

Here are some other general rules regarding giving the public access to meetings and records. Again, consult the law for the specifics.

Boards must give adequate notice of meetings and post the notices in a public location and online if possible. For meetings scheduled at least a week in advance, the media and public must get 72 hours notice. For those scheduled less than a week in advance, the notice has to be given “to the extent practicable.” That’s a vague term, but generally it means that as soon as they know about a meeting, they must alert the media and post the notice so people have a reasonable enough time to attend.

As for records, there again are only a few reasons why a board can deny records. Access to records is presumed, which means if the reason doesn’t show up in the list of exemptions, government boards have to release the record. 

The exemptions generally follow the exemptions for items that can be discussed in executive session, such as matters related to law enforcement investigations and collective bargaining. Other exemptions protect trade secrets of companies and information that could endanger someone’s life.

Boards also can hold onto records if releasing them would result in an unwarranted invasion of personal privacy. That one is subject to debate as to what constitutes an “unwarranted” invasion.

Protecting someone from public embarrassment is not a legitimate reason for withholding a record.

Boards also can withhold interagency or intra-agency communications (communications inside the government) that aren’t statistical data, final tabulations of policy or determinations, or instructions to staff that affect the public.

If someone from outside the government writes to someone inside the government, that communication generally must be disclosed.
Other things to watch for are illegal meetings at which a quorum of members is present for the purpose of conducting public business and the meeting hasn’t been properly advertised or opened to the public. Keep an eye out for “floating forums.” That’s when a board meets with less than a quorum and shares the information among the absent members. It’s legal, but it’s clearly in violation of the spirit of the law.

Whenever a board does something you find questionable, don’t be afraid to stand up and challenge it.

To help you, The Gazette has a blog called “Your Right to Know” on its website that addresses issues related to open government. Feel free to email Editorial Page Editor Mark Mahoney at mmahoney@dailygazette.net with your questions and any problems you have with access to meetings or records.

Public officials have a legal and moral obligation to be transparent to the citizens they serve.

Let’s hope they start the year off on the right foot.

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