The New York State Committee on Open Government (NYSCOOG) has issued an opinion that the Health and Human Services Committee of the Saratoga County Board of Supervisors, chaired by Supervisor Tara Gaston, violated the Open Meetings Law (OML) when it improperly closed the public portion of its January 27, 2021, meeting and went into executive session.
In addition the Committee on Open Government’s email appears to contradict Supervisor Gaston’s claim that she contacted them for assistance.
Supervisor Gaston Denies County Violated Open Meetings Law
In its January 28, 2021 edition, the Times Union reported on the contentious meeting of the county Health and Human Services Committee. The reporter noted that he had contacted the NYSCOOG regarding the executive session and that the NYSCOOG had confirmed his suspicion that the county had violated OML.
I subsequently wrote to Supervisor Gaston and asked:
Do you still contend that it was appropriate to have gone into executive session?
If you do not, are you concerned about the reliability of opinions issued by the County Attorney?
What actions do you plan to take to insure that the Open Meetings Law is adhered to.Email of February 1, 2021
On February 4, 2021, Supervisor Gaston responded to my inquiry in an email (her full response is at the bottom of this post), “I believe that the 1/27/21 executive session was appropriate and met necessary criteria.”
In this same email Supervisor Gaston attempted to spin the quote from the NYSCOOG in the TU article by interpreting it as having vindicated her. According to her reading of the quote the NYSCOOG was unsure as to whether the county had violated OML.
It is instructive to compare her paraphrase of what the Times Union published with the actual text from the article.
From the Times Union:
“It isn’t clear to me how having a discussion such as the one you describe in public would ‘imperil’ public safety,” she [Kirstin O’Neill Assistant Director of NYSCOOG] wrote in an email.” If the conversation does not meet any of the criteria …in our view, it should have occurred in public.”Times Union Article
Tara Gaston’s paraphrasing of the article
I am aware that the assistant director of COOG was quoted in a 1/28/21 TU article as stating that an executive session that did not meet certain criteria would violate open meetings law (which I agree with) and that it is not clear to her whether the 1/27/21 executive session would meet the required criteria. To my knowledge no determination has been provided by or requested from COOG.Supervisor Gaston email.
Ms. O’Neill is not saying she is unclear about whether the Supervisors violated OML. She states she is unclear how such a discussion would “imperil” the public, as required by law.
Nevertheless, to be thorough, on Friday morning, February 5, I wrote to the NYSCOOG asking for an opinion. I provided them with the actual public record (minutes) of the county meeting.
I was surprised to receive a response later that same day. The actual full text in that response removes any possible ambiguity:
“So, the fact that the conversation involved public safety, isn’t enough [JK: Text in red was not included in the TU article]. Having the conversation in public would have to imperil public safety. It isn’t clear to me how having a discussion such as the one you describe in public would “imperil” public safety.”Email form NYSCOOG
I followed up with a telephone conversation with Ms. O’Neill and she made clear that in her opinion the county had failed to adhere to the OML.
Supervisor Gaston Alleged Attempt For Guidance From NYSCOOG
In her email to me, Supervisor Gaston wrote: “I have requested clarification from COOG.”
In my communication with the NYSCOOG I asked if the county had contacted them regarding the issue of OML and their meeting. In Ms. O’Neill’s response she wrote that to her recollection her office had received no such contact.
So I emailed Supervisor Gaston asking if she could send me her inquiry to the NYSCOOG and their response.
She did not answer that email and I subsequently emailed her again simply asking whether or not she was going to respond for my request. This similarly drew no resply.
NYSCOOG’s inability to recall any contact from the county along with Supervisor Gaston’s silence raises serious doubts about her statement that she had sought guidance from the state.
Supervisor Gaston seems to be part of a closed system that simply ignores the fundamental rights of the community to open government. This kind of opacity regrettably insures that there will be more scandals.
From The New York State Committee On Open Government
Good Morning Mr. Kaufman,
The motion to enter into executive session must include the reason for entering into the session that is consistent with law (See OML 105(1)).
The motion should also be specific enough so that the public is assured that the body is entering into executive session for a proper purpose.
The only reference to “public safety” in Section 105 is the language which allows a public body to enter into ES to discuss “matters which will imperil the public safety if disclosed.”
So, the fact that the conversation involved public safety, isn’t enough. Having the conversation in public would have to imperil public safety. It isn’t clear to me how having a discussion such as the one you describe in public would “imperil” public safety. If the conversation does not meet any of the criteria described in Section 105 (executive session) or Section 108 (exemptions), in our view, it should have occurred in public.
Have a good weekend.
Assistant Director, Committee on Open Government
New York State Department of State
One Commerce Plaza, Albany, NY 12231
From Tara Gaston:
I have received no notification from the County Attorney nor the Committee on Open Government (COOG) itself that the executive session at the 1/27/21 Health & Social Services Committee was determined to be a violation of NYS Open Meetings Law.
I am aware that the assistant director of COOG was quoted in a 1/28/21 TU article as stating that an executive session that did not meet certain criteria would violate open meetings law (which I agree with) and that it is not clear to her whether the 1/27/21 executive session would meet the required criteria. To my knowledge no determination has been provided by or requested from COOG. If that is not your understanding I would appreciate you forwarding a copy of such [JK: I am not sure why she is asking me this.]; I have requested clarification from COOG.
I believe that the 1/27/21 executive session was appropriate and met necessary criteria.
Tara N. Gaston | she/her
Supervisor, City of Saratoga Springs