School boards' closed sessions meet with resistance
Right to know clashes with privacy rule
By Erika Rosenberg, PoughkeepsieJournal.com, October 24, 2004
Journal Albany bureau

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ALBANY -- When school boards and other local councils meet in closed-door sessions to discuss the public's business, does the public ever have a right to know what is said?

School board members who think so face a growing backlash from colleagues who want to silence them and show the public a face of unanimity, said Bob Freeman, head of the state's Committee on Open Government.

''I think it's an unfortunate trend,'' Freeman said about an increasing number of school boards, town councils and the like adopting policies that members cannot speak publicly about closed-door sessions. One upstate school board removed a member who had been disclosing information on a Web site.

School board officials said what's discussed in private should stay private.

Confidentiality needed

''There are good and valid reasons for keeping information discussed at a properly convened executive session ... confidential,'' said David Ernst, spokesman for the state School Boards Association.

The state open meetings law requires government boards to meet in public except when discussing specific topics that would harm the public or individuals if disclosed. ''Executive sessions'' are allowed behind closed doors to discuss public safety, law enforcement, the discipline of a specific employee and a few other matters.

''Our general practice is everything is open to the public'' unless it's a matter of a specific employee or student or land negotiations, said Wappingers school board President Mary Falcone. ''We're doing the best we can.''

The issue came up in Wappingers, Dutchess County's largest district, after a board retreat was held Sept. 20.

According to John Donoghue, the school district's attorney, trustees may conduct board retreats in executive session, as long as it is for board development and no school business is discussed, Falcone said.

Board development includes discussion topics such as group communication, use of e-mail and who should contact the district's attorney.

''Board development is very important,'' Falcone said.

Some board members across the state say the privilege of meeting in private is being abused -- that boards are using the meetings to discuss controversial topics, from teacher contract talks to discipline of an administrator arrested on drug charges, that should be aired publicly.

''They go in there and talk about everything under the sun,'' said Jim Crean, member of the Orchard Park school board outside Buffalo. ''Whenever they want to talk about something and they don't want the press and the public to know, they duck under one of those provisions.''

Crean said his board once met in private to discuss a problem of mice droppings in an elementary school.

''I raised hell. I said mice (droppings) aren't covered by executive session,'' he said.

School board officials said closed-door discussions should remain confidential to protect the privacy of employees of students and protect school districts from lawsuits, among other reasons.

Ernst said boards are not trying to skirt the open-meetings law. His group's advice to school boards: ''Don't play games with the sunshine laws. Observe both the letter and the spirit.''

''The vast majority of our members do that,'' Ernst said.

Orchard Park's school board president said the board never goes into closed sessions to evade the open meetings law, though the discussion does drift sometimes.

''Whenever the conversation strays to something else ... I'm pretty careful about bringing the conversation back on topic,'' said Joseph Bieron. ''Everybody knows the rules and everybody tries to follow the rules.''

Official: Speech restricted

Freeman said policies to keep elected officials quiet about what happens behind closed doors are overly broad and unconstitutional because they restrict members' ability to speak.

''I've suggested to board members that they violate these policies with impunity,'' he said. ''How can it be that they have a lesser right to speech?''

Freeman advises local governments not to adopt such policies, and the City of Rome repealed one in April 2001 that threatened jail and fines for council members talking about closed-door sessions.

Freeman also said school boards and local councils misconstrue the law when they insist everything discussed in closed sessions must remain private. Some information can be made public, especially after decisions have been made, such as whether to hire someone or discipline an employee, he said.

But school-board officials say districts open themselves up to lawsuits if they disclose that kind of information.

''You will not find many other lawyers in the state who agree with his interpretation,'' Ernst said of Freeman. ''Most attorneys would take the view that everything that is discussed in executive session is confidential.''

In Oswego, one school board member created a Web site to inform the community about the district's business, including matters discussed behind closed doors.

Francis Hoefer posted information about the district's negotiations with its teachers union and about plans to possibly keep on an administrator who had been arrested on drug charges.

''I refused to keep this stuff secret,'' Hoefer said. ''I consistently informed the public about what was going on in executive session.''

Confrontation erupts

Hoefer's confrontation with the board and district superintendent grew to the point where the district investigated him, charged him with a slew of improprieties and, after a hearing officer sustained the charges, voted him off the board.

Hoefer was accused of violating a board policy to keep closed sessions private, breaking laws requiring him to keep some information about students and employees private and treating district officials disrespectfully in conversations Hoefer admitted became heated.

''The board was properly going about doing its business and Mr. Hoefer was routinely disclosing portions of that,'' said the district's attorney, Michael Stanley. ''Bits and pieces of things were being released -- clearly not presenting a clear and full picture of what was going on.''

Hoefer has appealed to state education Commissioner Richard Mills, who has yet to rule in the case. Hoefer said his removal is anti-democratic.

''It's going to silence dissent across New York state in school boards,'' he said.

Journal staff writer Erikah Haavie contributed to this report.

Welcome to the Committee on Open Government
NYS Department of State
Committee on Open Government41 State Street
Albany, NY 12231 Telephone: (518) 474-2518
Fax: (518) 474-1927
E-Mail: Contact Committee

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Mission

The Committee on Open Government is responsible for overseeing and advising with regard to the Freedom of Information, Open Meetings and Personal Privacy Protection Laws (Public Officers Law, Articles 6, 7 and 6-A respectively).

The Freedom of Information Law pertains to the public's right to government records; the Open Meetings Law concerns the public's right to attend meetings of public bodies. Both of these statutes are based upon a presumption of access and, since their initial enactment, have undergone significant changes based largely upon recommendations made by the Committee.

The Personal Privacy Protection Law, enacted in 1984, pertains to personal information collected and maintained by state agencies. State agencies are required to meet standards of fair information practices regarding the collection, maintenance, use and disclosure of personal information. The law enables individuals to correct or amend records pertaining to them, grants individuals broad rights of access to records pertaining to them, and prohibits the release of personal information, except under circumstances specified in the Law.

Specific responsibilities of the Committee under the Freedom of Information Law involve furnishing advisory opinions, both oral and written, to any person and promulgating rules and regulations relative to procedural aspects of the Law. The Open Meetings Law requires that the Committee provide advice to any person. Advisory opinions are also prepared concerning the Personal Privacy Protection Law at the request of persons who are subjects of records covered by the Law, as well as at the request of state agencies seeking to comply with that statute.

The Committee is required to submit a single comprehensive annual report to the Governor and the Legislature describing the Committee's experience under each of the statutes and recommendations for improving them.

The Committee and the laws it oversees have gained national and international recognition as models for other jurisdictions. Its work and experience have been shared with access professionals at international conferences, and it is represented through membership in the Council on Governmental Ethics Laws and the Media Law Committee of the New York State Bar Association.

On the Web

- Wappingers Central School District:

- NYS Freedom of Information Law

-Open Meetings Law

-Personal Privacy Protection Law

- Committee on Open Government

-Public Access to Records

-Model Regulations

-Your Right to Know

-You Should Know

-E-Mail Food For Thought

-New York State School Boards Association: www.nysba.org