August 10 Meeting

“I am a firm believer in the people.  If given the truth, they can be depended upon to meet any national crisis.  The great point is to bring them the real facts.”  ~unknown

First I would like to apologize for being late with this post.  This was a very peculiar meeting that you needed to be present to even believe.  (There was a lawn mower in the room at one point)

The meeting started at 6:00 p.m. with a public hearing on the proposed Local Law #2 (Administration and Enforcement of the New York State Uniform Fire Prevention and Building Code).  This matter was tabled until the September 14th meeting.  This meeting will begin at 6:30 p.m. for anyone wishing to comment on this new law and will also give certain board members to spend more time analyzing the proposed law.  Please be sure to read this and weigh in with your thoughts.

Curt Rung gave his report here are some highlights from it:

• Changed crossover pipe on Pleasant Valley by County Route 8
• Received $319.20 from scrap
• Cleaned up after the storm

The Justice report showed a check for $430 (give or take) was sent to the state.  The state will reimburse the town our share.

The Code Enforcement Officer issued four building permits for a total of $883.60.

Assessors report was that she is still filing and that she turned a disk into Belmont.

Jon Reitz spoke to the board about Invenergy, a windmill company that would like to come and do a presentation for the town.  This presentation is set up for August 31 at 7:30 p.m. at the Town Hall.  Mr. Jay Schoenberger from Rockville, MD will present all the information to us.   The public needs to turn out for this meeting and have your questions ready for Mr. Schoenberger.  Once again Mr. Kozlowski did not want us the public to attend this upcoming meeting and he had to be reminded that the board is not the one that set up the meeting.  Mr. Reitz was able to set this up for us and we should thank him the next time you see him.

At the end of the meeting a petition was delivered to the Board with over 47 signatures  requesting the board require a report from the assessors office.  The board saw no problem with this and Alice will present a report to the board from now on.

The next meeting is September 14 at 6:30.  Hope to see you there.

In closing I am posting the rules for executive sessions since this board meeting was adjourned with an illegal Executive Session.

§ 4-6. Executive sessions.
A.    Defined. Public Officers Law § 102(3) defines “executive session” to mean a portion of an open meeting during which the public may be excluded.

B.    Procedure. The town board must strictly comply with the statutory procedure in order to call a valid executive session. [Daily Gazette Co. v. Town of Cobleskill, 111 Misc.2d 303 (Sup. Ct. Schoharie Co. 1981)] The procedure to call an executive session is set forth in Public Officers Law § 105(1). It requires a town board member to make a motion to enter into executive session, which motion must be approved by a majority of the entire town board.

C.    Items which can be discussed. The courts have held that the town board motion to enter into executive session must identify with “particularity” the subject to be discussed. As one court stated: “It is insufficient to merely regurgitate the statutory language; to wit, ‘discussions regarding proposed, pending or current litigation.’ This boilerplate recitation does not comply with the intent of the statute.” [Daily Gazette Co., Inc. v. Town of Cobleskill, 111 Misc.2d 303 (Sup. Ct. Schoharie Co. (1981)] Only the following matters specified in Public Officers Law § 105 may be discussed and acted upon in an executive session:

(1)    A matter which will imperil the public safety if it is disclosed;

(2)    A matter which may disclose the identity of a law enforcement agent or informer;

(3)    Information with respect to investigation or prosecution of a criminal offense which would jeopardize effective law enforcement if disclosed;

(4)    Discussions relating to proposed, pending or current litigation;

(5)    Matters relating to collective negotiations under the Taylor Law;

(6)    Medical, financial, credit or employment history of a particular person or corporation, or relating to appointment, promotion, demotion, discipline or removal;

(7)    Preparation, grading or administration of examinations;

(8)    Acquisition, lease or sale of real property or securities when publicity would substantially affect the value.

D.    Personnel matters or litigation. Executive sessions are most frequently used to discuss personnel matters or litigation.

(1)    First, Public Officers Law § 105(1)(f) authorizes the town board to enter into executive session to discuss what is commonly referred to as “personnel matters.” The statutory language, however, does not include the word “personnel.” The actual statutory language (as noted above) reads as follows: “the medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation.” The Committee on Open Government (the state agency that oversees the Open Meetings Law) has offered the following comments regarding the proper language to use when entering into executive session to discuss personnel matters:

Due to the presence of the term ‘particular’ in § 105(1)(f), it has been advised that a motion describing the subject to be discussed as ‘personnel’ or as a ’specific personnel matter’ is inadequate, and that the motion should be based upon the specific language of § 105(1)(f). For instance, a proper motion might be: ‘I move to enter into an executive session to discuss the employment history of a particular person (or persons).’ Such a motion would not [in the Committee's opinion] have to identify the person or persons who may be the subject of the discussion. (Comm. on Open Govt. OML AO-2444, 1995)

(2)    Second, Public Officers Law § 105(1)(d) authorizes the town board to enter into executive session for the purposes of discussing “proposed, pending or current litigation.” In construing this language, one court stated that the purpose of Paragraph (d) is “to enable a public body to discuss pending litigation privately, without baring its strategy to its adversary through mandatory public meetings.” [Mtr of Concerned Citizens to Review Jefferson Val. Mall v. Town Board of Town of Yorktown, 83 A.D.2d 612, 613 (2d Dept. 1981)] The belief of the town’s attorney that a decision adverse to petitioner “would almost certainly lead to litigation” does not justify the conducting of this public business in an executive session. [Weatherwax v. Town of Stony Point, 97 A.D.2d 840 (2d Dept. 1983)] To validly convene an executive session to discuss “proposed, pending or current” litigation, the town board motion must “identify with particularity the pending, proposed or current litigation to be discussed during the executive session.” [Daily Gazette Co. Inc. v. Town of Cobleskill, 111 Misc.2d 303 (Sup. Ct. Schoharie Co. (1981)] Therefore, the town board may discuss litigation strategy behind closed doors but not issues that may only have the potential to lead to litigation.

E.    Minutes.

(1)    Summary minutes must be made of any final determination taken by formal vote, including the date and the vote thereon; however, such summary should not include any matter which is not required to be made public under the Freedom of Information Law. Such summary minutes shall be available to the public within one week from the date of the executive session.

(2)    If no formal action was taken in an executive session, as is often the case, then no executive session minutes need be taken. For example, if the session consisted of a discussion of a personnel matter, but no final action or determination was agreed to or made, then no minutes are required. There would, of course, be minutes of the open meeting at which the motion and vote to go into the executive session was made.

F.    Public monies. Public monies cannot be appropriated by formal vote in an executive session.

G.    Attendance. The Open Meetings Law provides that attendance at executive sessions must be permitted to any member of “the public body” (that is, the town board members) and any other persons authorized by such body. Therefore, opinions of the State Comptroller (78-254 and 78-462) have concluded that it is clear that the town clerk has no right to attend such sessions but that the town board may, in its discretion, allow the clerk to attend. If the clerk is not allowed to attend, someone should be designated to take any necessary minutes.