NYS Committee On Open Government Issues Opinion That County violated The Law. Supervisor Gaston Doubles Down That The County Did Nothing Wrong.

I sent Saratoga Springs Supervisor Tara Gaston the reply I got from the New York State Committee on Open Government stating that the decision of her Health and Social Services Committee to go into executive session on January 27 was in violation of the New York State Open Meetings Law. I received a very troubling response from her. In her email she simply dismisses the NYS Committee on Open Government’s (NYSCOOG) written opinion. Just as disturbing was her assertion that she had contacted the NYSCOOG concerning this opinion. The Assistant Director of NYSCOOG who issued the opinion has no recollection of being contacted by Supervisor Gaston or anyone from Saratoga County. I have asked Supervisor Gaston to whom she spoke and when but have not received a reply.

I have included Supervisor Gaston’s email to me in this post.

Supervisor Gaston has, in the past, vigorously asserted the importance of transparency.

With that in mind I have offered her the opportunity to be a guest on this blog and to publish unedited her explanation of the decision to take her committee into executive session.

Supervisor Gaston’s Email

Friday, February 12, 2021

To be clear, to my knowledge no formal opinion has been requested on behalf of the Saratoga County Board of Supervisors or any subset of county government. I did not request a formal opinion, but reached out to COOG by phone to discuss and clarify comments made to the press and COOG’s opinion process. 

Thank you for sharing the email below. I acknowledge the statements of Ms. O’Neill, although I note that as of yesterday COOG had not requested any information from the County in this matter.  I am looking into the information provided prior to going into executive session to see if there is a way we can improve what we provide prior to any such motion, but I stand by the appropriateness of the executive session.

Thank you.Tara N. Gaston | she/her
Supervisor, City of Saratoga Springs

Lew Benton’ Analysis

[JK:I received an email from Lew Benton regarding his analysis of the county’s decision to go into executive session and deny the public access to their deliberations on the most recent controversy over the county’s handling of the COVID crisis .]


Several days ago you shared an email from the chair of the County Health and Human Services Committee referencing the relative legitimacy of her committee’s January 27 executive session. Sorry it has taken his long to respond.

According to the minutes, as the meeting moved to agenda item V, billed as a discussion of the “Ongoing COVID Response”, an attending non-committee member interjected to express her discomfort at having been asked to ‘pick’ ten senior residents of her town to receive a COVID vaccination. Apparently, an unanticipated allotment and the need to act promptly precipitated the request.

That expression prompted concerns regarding how and by whom such communications should be made in an effort to avoid confusion and the dissemination of conflicting information. After additional comment, the chair of the Board of Supervisors – who sits as an ex-officio member of the Health and Human Services Committee – commented, according to the meeting minutes, that:

“ … he would like all of his colleagues to receive the information they are seeking and believes that there is additional information that will lend itself to this conversation, something that should be discussed in Executive Session because it is in relation to the public health, welfare and safety of our residents. Mr.

Kusnierz respectfully requested that the Committee enter into executive session so that a more detailed conversation can be had on the lead up to the questions that were raised. The Committee can then come back into open session answer some of the additional questions that are being posed here.”

The committee chair then asked the county attorney and the “Commissioner” to opine on the appropriateness of such an executive session. The county attorney replies that “ … the criteria are met because it is a matter of public safety.”

Of course, the county attorney was incorrect. The one applicable criterion to be met is not that the matter to be discussed deals with public safety, as the county attorney advised, but rather that such discussion, if conducted in open session, would imperil the public safety.

The committee then adjourns to executive session despite the protest of Supervisor Kinowski. So was the county attorney and the board chair correct in recommending executive session ‘…

so a more detailed conversation could be had … on the questions that were raised.’ ?

Undoubtedly no, and they should have known that an executive session was not warranted. Why? Because the discussion had nothing to do with any subject that, if discussed in open session, would have imperiled the safety of the public.

The NYS State Department of State maintains a register of opinions on the Open Meetings Law. These are designed to benefit local elected officials, the public, municipal attorneys and anyone who has an interest keeping government transparent.

 I have pasted relevant sections of some of those opinions below.

In a April 25, 2003, opinion the Committee on Open Government concluded that a committee of the Yates County Legislature violated the Open Meetings Law by adjourning to executive session to discuss how failure to fill vacancies in the District Attorney’s Office might result in less rigorous prosecutions, more plea bargains or dismissals of charges.

Wrote the executive director of the Committee on Open Government:

“The …situation concerning the position of assistant district attorney appears to pertain to the ability of staff to carry out functions in relation to matters in which persons are or have been arrested and/or in custody of law enforcement officials. While the inability to fill a vacancy might result in a greater number of cases being plea bargained or perhaps dismissed, it seems unlikely that problems of that nature if discussed in public would “imperil the public safety.”

Similarly, it does not seem conceivable that the subject of the January 27 meeting of the Health and Human services Committee’s executive session “…so that a more detailed conversation can be had on the lead up to the questions that were raised” would, if held in open session, imperil public safety.

in a January 18, 2005, opinion regarding the appropriateness of a Village of Saranac Lake executive session to discuss the siting of a “safe house” for battered women, the Committee on Open Government concluded that the executive session was probably in compliance with the Open Meetings Law.. In significant part the Committee staff concluded:

“Although it is rarely cited, I believe that paragraph (a) would have been pertinent in the context of the situation that is the focus of your inquiry. That provision authorizes a public body, such as a village board of trustees, to conduct an executive session to discuss ‘matters which will imperil the public safety if disclosed.’ Similar factual situations have arisen in the past, and in consideration of the need to provide safety and security to battered, abused or threatened women and their children, a public body may, in my opinion, enter into executive in any instance in which public discussion could place those persons in jeopardy or danger.”

Surely the stated subject of Health and Human Services Committee’s executive session, unlike that of the referenced Saranac Lake example, fell far short of he imperil public safety standard. Much more likely, the Health and Human Services session was simply used to avoid some political embarrassing matter or incident. Certainly a corruption and mockery of the “imperil public safety” standard.

There are also a number of Committee on Open Government opinions and legal decisions with regard to the sufficiency of a motion to enter executive session.

In a 1996 response to an inquiry, it was noted that the Appellate Division, Second Department, had recently confirmed the advice rendered by this office (The Committee on Open Government). In discussing §105(1)(f) in relation to a matter involving the establishment and functions of a position, the Court stated that:

 “…the public body must identify the subject matter to be discussed (See, Public Officers Law § 105 [1]), and it is apparent that this must be accomplished with some degree of particularity, i.e., merely reciting the statutory language is insufficient (see, Daily Gazette Co. v Town Bd., Town of Cobleskill, 111 Misc 2d 303, 304-305). Additionally, the topics discussed during the executive session must remain within the exceptions enumerated in the statute (see generally, Matter of Plattsburgh Publ. Co., Div. of Ottaway Newspapers v City of Plattsburgh, 185 AD2d §18), and these exceptions, in turn, ‘must be narrowly scrutinized, lest the article’s clear mandate be thwarted by thinly veiled references to the areas delineated thereunder’ (Weatherwax v Town of Stony Point, 97 AD2d 840, 841, quoting Daily Gazette Co. v Town Bd., Town of Cobleskill, supra, at 304; see, of Orange County Publs., Div. of Ottaway Newspapers v County of Orange, 120 AD2d 596, lv dismissed 68 NY 2d 807).

And finally, that same opinion included this:

“It is insufficient to merely regurgitate the statutory language; … This boilerplate recitation does not comply with the intent of the statute. To validly convene an executive session … the public body must identify with particularity the pending, proposed or current matter to be discussed during the executive session” [Daily Gazette Co. , Inc. v. Town Board, Town of Cobleskill, 44 NYS 2d 44, 46 (1981), emphasis added by court].

“Regurgitating” the statutory language, as the Public Health Committee did, does not comply with the statute.

Lew 02/14/21

Sent from my iPhone

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