Committee on Open Government confirms that executive session did not meet legal requirements
– By Josh Durso
Kristin O’Neill, who serves as Assistant Director of the Committee on Open Government issued an opinion on the session held Thursday in Seneca County after a request made by FingerLakes1.com.
She says that her office was originally tipped off about the session when a concerned citizen called her as the supervisors were entering executive session.
O’Neill says the fundamental misunderstanding centers around what constitutes a majority count for the Board of Supervisors to enter an executive session. “Pursuant to General Construction Law Section 41, which defines the term “quorum,” that the Board of Supervisors may not exercise its powers absent the approval of a the majority of the whole number of the board,” she explained.
O’Neill further explained that the term “whole number” is defined as “the total number which the board, commission, body or other group of persons or officers would have were there no vacancies and were none of the persons or officers disqualified from acting.”
She noted that any measure, regardless of the number of supervisors present on an individual night – would require a majority of the whole to be passed legally.
“Pursuant to Section 105 of the Open Meetings Law, in order to enter into executive session, a motion must be made which must include the reason or reasons for entering into executive session. The motion must include one of the statutory reasons for entering into executive session listed in the Law and must contain sufficient details to allow all Board members and the public to know that the Board is entering into executive session for a proper purpose. The motion must be approved by a majority of the total board,” O’Neill explained.
The Committee on Open Government is authorized to provide advice and opinions regarding the Open Meetings Law. Neither the Committee, nor its staff, is empowered to determine whether a meeting was held in violation of the Open Meetings Law or to compel a public body to take certain actions. Only the courts, via a Civil Practice Law and Rules Article 78 proceeding, have enforcement authority, according to O’Neill.
However, she notes that given the circumstances in Seneca County – the executive session was held in violation of Open Meetings Law.
Was the final executive session of 2019 legal?
Original: Friday, 6 a.m.
A meeting that should have been a simple session – left taxpayers, and even supervisors in Seneca County with more questions than answers late-Thursday.
The ‘end of year’ meeting is typically reserved for paying leftover bills, setting certain parameters for the following year, and under unusual circumstances acting on emergency legislation.
When the agenda was distributed to the media last week – there was a piece of ’emergency’ legislation on it. The Tourism & Agriculture Committee had passed a measure on to the full-board to consider spending $50,000 to help Seneca White Deer, Inc., a 501(c)3 operating at the former depot continue forward.
However, due to the extent of the financial hardship, SWD President Dennis Money said ending their tourism operation at the depot was the only path forward. At the time, he argued, that rent was simply too high to be sustained in the long-term.
Fast-forward to Thursday’s meeting, where the supervisors heard from property owner Earl Martin. He purchased the depot property from the Seneca County Industrial Development Agency, and held the license, or lease agreement for the property that ultimately ended the 501(c)3 operation at the depot.
It’s unclear what Martin would only address the supervisors in executive session about, but Board Chairman Bob Shipley, R-Waterloo, said that it was ultimately born out of legal concerns. “Had the executive session been defeated Earl Martin would not have been able to address the Board of Supervisors in open session due to his confidentiality agreement with Seneca White Deer,” Shipley said.
How the Board entered that executive session would became the biggest debate of the night.
Supervisors Lee Davidson, R-Lodi; Walt Prouty, R-Ovid; Greg Lazzaro, R-Seneca Falls; and David Kaiser, R-Romulus; all of whom were not re-elected in November were absent. While Supervisor Davidson has been recovering from a serious car accident late-summer, the other supervisors were not at the Board’s last committee session of 2019 earlier this month.
Chairman Shipley says the executive session lasted about 45 minutes. “Mr. Martin presented some material to put into perspective the information that Dennis Money had publicly made available,” he said in an email late-Thursday. “Due to the Martin Agreement with Seneca White Deer, any info disclosed to the Board of Supervisors is confidential and only available to be addressed by Mr. Martin.”
However, with those four missing supervisors, and three others opposing – entering executive session was mathematically challenged. Supervisors Cindy Lorenzetti, D-Fayette; Bob Hayssen, R-Varick; and Paul Kronenwetter, R-Seneca Falls – all voted against entering executive session. Combined with absent members, it’s argued that the Board did not have a full-majority.
According to state law, a simple majority of the Board’s full-membership is required for any executive session. Due to absent members and nay votes – the Board may not have had enough to go into a legal executive session. To make matters worse, the very reason for executive session was only loosely applied to the circumstances.
FingerLakes1.com has reached out to the Committee on Open Government for additional clarification on the matter. The supervisors based their executive session on the potential of ‘future litigation’, but the Board was not facing any litigation. While a confidentiality agreement may exist between the two private parties – Earl Martin and Seneca White Deer – it’s unclear if that is enough for the Board to use as legal justification for a closed-door session.
Supervisor Lorenzetti says she voted against the executive session because there was no litigation coming to the County. “Dennis Money was able to openly discuss the White Deer Closing and I felt that Earl Martin should of done the same,” she said of the situation. “Executive sessions should be entered in thoughtfully. They should never give the appearance that the board is doing anything behind the backs of the public taxpayers.”
She says the promise of transparency was not kept.
For his part Supervisor Hayssen called it an ‘illegal’ meeting. “It could have waited until next year,” he said. The Supervisor also noted that other board members could have convinced one of the ‘nays’ to switch their vote. He says the reason for going into executive session wasn’t ‘up to snuff’. “Everything Earl Martin said could have been said in a public session,” Supervisor Hayssen added. “I’m sorry on behalf of the taxpayers – it should not have taken place.”
Chairman Shipley called the idea that the Board entered into executive session illegally ‘misguided’, and said that calling it ‘illegal’ would be an ‘exaggerated’ opinion held by the three supervisors who voted against the motion. “The Deputy County Attorney gave an opinion stating this vote satisfied the legal requirements that govern our board meetings. I accepted this opinion and ruled the same in the opinion of the Chair,” he said. “It is not based in fact nor representative of the opinion of the majority of the Supervisors,” Shipley added, concluding that no harm, or action came from the executive session.
FingerLakes1.com will have more on this story after speaking with the Committee on Open Government to follow-up on Friday.
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