The Fredonia Village Board, and all area public bodies for that matter, may want to review the Open Meetings Law that presides over meetings in which a quorum is present.
Thomas DeJoe, Brocton Board of Education and Erie 2 BOCES board member, brought what he alleged as Fredonia holding illegal executive sessions to the attention of the OBSERVER after he read numerous times that the village board entered into these sessions to simply discuss personnel, particularly during budget workshops the past two months.
"The Open Meetings Law is explicit as to what you can go into executive session for," he said. "You can't try to avoid talking about staffing (levels); that has to be done in public. Where is the attorney on this?
"A lot of boards around here go under the concept, 'If nobody knows, then it's fine and we can get away with it.' That's a disservice to the community they serve and it frustrates me."
According to official meeting minutes, the board held at least 27 executive sessions since January 2013, in addition to several more during the latest budget process. At least 12 sessions (plus more during budget sessions), while held during legal meetings, were allegedly non-compliant with the Open Meetings Law, under DeJoe's reasoning: an incomplete explanation for shutting the door on the public while the board talked village business.
Namely, the board cited "personnel in a specific department" numerous times and left it at that, when it should have been expanding on that reasoning, DeJoe explained.
At least one state official agrees.
"I've said this a thousand times, the word 'personnel' does not appear anywhere among the eight grounds for entering into executive session, and yet, we hear it all the time," Robert Freeman, New York State Committee on Open Government executive director, said when asked about the legality of Fredonia's meetings. "I think it's a word that should be thrown out of our vocabularies."
Freeman added the Open Meetings Law cites eight reasons to legally hold an executive session. When it comes to personnel, a public body must cite the closed-door meeting is to discuss "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," as stated in the law.
"What we have advised, and the courts agreed, is the motion should include two elements: Reference to the keyword 'particular,' so that the world knows the focus is on a specific individual or corporate entity, and one of those qualifiers that appears in the language of the exception," Freeman noted. "The motion would not have to identify the individual that is the subject of the discussion, but if the board uses a qualifier, it tells the world they've read the Open Meetings Law and, unless they're fibbing, they're about to discuss a subject that may properly be considered during an executive session."
Village Attorney Samuel Drayo seemed to understand where DeJoe's complaint was coming from, saying he will look into possibly cleaning up the language for entering into an executive session from now on.
"If we haven't complied with that technical requirement of the Open Meetings Law, it's certainly not trying to avoid it or anything," he explained. "We'll be careful to watch if we have to more carefully define what the matter is without hurting someone's reputation. We'll try to be more specific on that and make that improvement."
Drayo said he was not present at many recent budget sessions in which executive sessions took place, but added he will look into seeing if any additional reasoning needed to be provided.
He pointed out the village board tries its best to use caution when discussing anything in executive session.
"If something comes up (that isn't supposed to be discussed), someone, either myself or one of the trustees, says, 'Wait a minute, that doesn't have anything to do with collective bargaining or salaries or anything like that.'" Drayo said. "It's got to be out in the public before that is talked about. Unless it's discipline, they take no action during the executive session; if it's spending of any money, they can't talk about it in an executive session, and the board has been good not to do that."
Mayor Stephen Keefe said he trusts Drayo's advice on this matter and referred questions to him.
"Sam has been doing what he does since I think the '60s," he said. "He knows this issue best. I'm not under any information that what we've been doing has been illegal in any way."
Freeman said some personnel issues may be discussed privately, but there are "just as many others that have to be discussed in public." He also addressed executive sessions for possible personnel cutting in a budget.
"Budget discussions should be public, even if they're saying they have to lay off people. They're talking about positions, they're talking about how public money should be allocated," he stressed. "The fact that employees may have to be laid off has nothing to do with their performance. It should be open."
The alleged illegal meetings do not include occasions when the board cited "personnel pursuant to Article 14 of the Civil Service Law," a separate, permissible reason under the Open Meetings Law.
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