Two items on the agenda ended in discussion after the motion was made to adopt.
When the public portion of the meeting was adjourned, Superintendent Nole asked for a vote to go into executive session for what this blogger later found out was for pending litigation. I say later found out because as usual, Superintendent Nole's request was difficult to hear even though I was within a few feet of the board table.
- Board member Flemma questioned one of the coach appointments, but the rest of the board passed all five (5) with one vote instead of individually as requested by Flemma.
- Board member Flemma also questioned a $6,000 stipend to be paid to Superintendent Robert Nole in lieu of an increase in base salary during the 2014-15 school year.
On the agenda:
C. Amendment to Contract
WHEREAS, at the end of August the evaluation for the Superintendent of Schools was completed and the Board of Education deemed it appropriate to provide an increase in compensation from that provided in the 2013-14 school year;
NOW, THEREFORE, BE IT RESOLVED, that the Board of Education hereby approves amendment of the Superintendent's contract providing, in lieu of an increase in base salary during the 2014-15 school year, payment of a one-time six thousand dollar ($6,000.00) stipend.
Pending litigation is certainly an exception to the Open Meetings Law allowing a public body to discuss litigation strategy behind closed doors; however, here’s the problem with Superintendent Nole's request:
According to an article on the Committee for Open Government website:
Based on a recent decision of the Appellate Division, as well as earlier decisions, a motion cannot merely parrot the language of a statutory ground for conducting an executive session. In short, the decision confirms that a motion to conduct an executive session should include information sufficient to enable the public to believe that there is a valid basis for closing the doors.In Daily Gazette Co. , Inc. v. Town Board, Town of Cobleskill:
"It is insufficient to merely regurgitate the statutory language; to wit, 'discussions regarding proposed, pending or current litigation'. This boilerplate recitation does not comply with the intent of the statute. To validly convene an executive session for discussion of proposed, pending or current litigation, the public body must identify with particularity the pending, proposed or current litigation 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].More recently, in Zehner v Board of Education of Jordan-Elbridge Central School District, the Appellate Division affirmed that the lower court:
“… properly determined that respondent violated the Open Meetings Law on three occasions by merely reciting statutory categories for going into executive session without setting forth more precise reasons for doing so. Given the overriding purpose of the Open Meetings Law, section 105 is to be strictly construed, and the real purpose of an executive session will be carefully scrutinized ‘lest the … mandate [of the Open Meetings Law] be thwarted by thinly veiled references to the areas delineated thereunder’ (Daily Gazette Co. v Town Bd., Town of Cobleskill, 111 Misc2d 303, 304 [Sup Ct, Schoharie County 1981]; see e.g. Gordon v Village of Monticello, 87 NY2d 207 AD2d 55.” Zehner v Board of Education of Jordan-Elbridge Central School District, Appellate Division, 4th Dept, January 31, 2012.In its decision, the court ordered:
Therefore, this Court directs the members of the respondent Board to participate in a training session concerning the obligations imposed by the Open Meetings Law, conducted by the staff of the Committee on Open Government. See, Public Officers Law § 1 07(1).The public at last night’s meeting was given no reason to believe that the school entered into executive session for a legitimate reason. Superintendent Nole merely stated it was for pending litigation and the board readily approved.
The Board must provide proof of completion of its training within ninety (90) days of the date of this Order.2
This Court also finds that the petitioner is entitled to attorney's fees based on the record in this case and the Board's previous violations of the Open Meetit1gs Law. Counsel for petitioner is directed to submit an affidavit detailing legal fees for this matter no later than fifteen (15) days from the date of this Order and this Court will determine the reasonable attorney's fees to be awarded.
As public officers, it is the duty of each board member to be familiar with the Open Meetings Law and to make a conscience effort to conduct their meetings in accordance with the law. There is plenty of information available on the internet regarding the Open Meetings Law and certainly, if requested, Robert Freeman would more than likely be happy to conduct a workshop to help facilitate the board's understanding of the law.
Below is a video of the meeting: