According to information released this morning, the New York State Department of State, Committee on Open Government ruled on Tuesday that discussions between the Village of Brockport and the Towns of Clarkson and Sweden “must be discussed in public to comply with the Open Meetings Law.”
Moreover, COG ruled that:
“…there would appear to be no basis for conducting an executive session to discuss the formation of a fire district.”
In other words, last night’s secret meeting at the Sweden Town Hall was illegal, and every secret meeting about the fire district that has been held by the two Town Councils and the Village Board has been illegal.
Every time the Town Councils or the Village Board enters into executive session to discuss the fire district they are breaking the law.
But nobody has the courage to do anything about it. The Village Trustess and the Town Council members are so afraid of Paul Kimball that they would rather break the law then stand up to Kimball.
What does that say about the elected officials in Brockport, Clarkson and Sweden?
On Tuesday, Trustee Scott Hunsinger emailed the ruling to the members of the Village Board before the Baord Meeting and made them aware of the Committee on Open Government’s ruling, but the Trustees decided to participate in last night’s illegal meeting anyway.
The Village Trustees who attended the secret meeting last night at the Sweden Town Hall violated the law again. If those Trustees didn’t realize that they were violating the law, it is only because they didn’t bother to read the opinion issued by the Committee on Open Government.
Here is the exact text of the opinion the Committee on Open Government sent to Trustee Hunsinger on Tuesday, and which Trustee Hunsinger shared with the Village Board on Tueday night.
The opinion can be obtained from the Committee on Open Government.
The opinion was written by Robert J. Freeman, Executive Director, Committee on Open Government, New York Department of State
To: “[email protected]”
Sent: Tuesday, July 26, 2011 8:51 AM
Subject: RE: Open Meetings Law
Dear Trustee Hunsinger:
I believe that there is confusion involving the Open Meetings Law and its companion, the Freedom of Information Law. The two statutes are separate, and the standards regarding disclosure and the ability to withhold information, either via a basis for entry into executive session or assertion of the grounds for denying access to records, differ. In short, as the grounds for conducting an executive session are compared with the grounds for withholding records under the Freedom of Information Law, they are often inconsistent. There are instances in which there is no basis for conducting an executive session, but in which there may be a basis for withholding records, and vice versa.
From my perspective, the issue under consideration, the Village of Brockport and the Towns of Sweden and Clarkson forming a fire district, must be discussed in public to comply with the Open Meetings Law. Unless there is unusual information that has not been shared, none of the grounds for entry into executive session could properly be asserted to discuss the matter. On the other hand, there may be elements of the records transmitted between or among the three municipalities that may be withheld under the Freedom of Information Law. I emphasize “may”, for even when the kinds of records in question fall within an exception to rights of access and may be withheld, there is no obligation to withhold them.
The exception in this instance is §87(2)(g) of the Freedom of Information Law concerning “inter-agency or intra-agency materials.” Communications between or among the three municipalities would constitute inter-agency materials, and those portions that consist of advice, opinion, recommendations, questions and the like may be withheld. However, the same provision requires that other portions of those materials that consist of statistical or factual information, that reflect final agency policies or determinations, or which are external audits must be disclosed.
In sum, there would appear to be no basis for conducting an executive session to discuss the formation of a fire district. That being so, insofar as the content of records have been or should have been discussed and, therefore, effectively disclosed to the public, I believe that those records or portions of records should be made available to comply with law. Again, other portions of the records reflective of advice, opinions or recommendations may, but need not be, withheld.
I hope that the foregoing serves to clarify your understanding and that I have been of assistance.
Robert J. Freeman
Committee on Open Government
Department of State
One Commerce Plaza
99 Washington Avenue
Albany, NY 12231