This is an Article 78 Proceeding that alleges Open Meetings Law violations by the Respondent School Board. Petitioner requests the Court to:

1.Declare null and void a decision made by Respondents in regard to Lindsey Stephenson's (Petitioner's daughter) termination as a probationary teacher at the September 21, 2010 School Board Meeting.

2.Declare that the executive sessions conducted on various dates violated the Open Meetings Law.

3.Direct that Respondents disclose the subjects discussed at the executive sessions on those dates.

4.Direct Respondents to disclose what litigation matters were discussed in an executive session on December 7, 2010, [*2]

5.Declare null and void all actions taken by Interim Superintendent of Schools for failing to sign and file his oath of office.

At Special Term, I orally dismissed the Petition as to the request for relief that asked the Court to declare null and void actions taken by the Interim Superintendent of Schools for failing to sign and file an oath of office. This is outside the scope of any Open Meetings Law violation that may have taken place. I reserved decision on the alleged violations of the Open Meetings Law.

Petitioner's daughter was a probationary teacher in the Hamburg Central School District and her probationary status was terminated by the Board at the meeting on September 21, 2010. The termination was done in a regular meeting but was discussed in an executive session. Respondents believe that the Petitioner is using the allegations of a violation of the Open Meetings Law to attack her daughter's termination. However, the Petition does set out alleged violations of the Open Meetings Law, New York State Public Officers Law Article 7, and an Article 78 Proceeding is the required method to attack violations of the Open Meetings Law.

The Petitioner complained about the quality of the minutes. Also, she complained that in the middle of the Board meetings the Respondent Board had taken breaks to have cake with individuals being recognized for some contribution to the School District. These allegations are without merit in terms of violating the Open Meetings Law.

An issue did come up over a tape recording that someone did of an executive session of the School Board meeting that involved the Petitioner's daughter. There is no question the taping of the executive session is improper and violates the confidentiality that is encompassed in the executive session. The issue over taping is not an issue encompassed in the alleged violations of the Open Meetings Law. The tape transcript was provided to the Court and is part of the Petition. However, the transcript makes little sense to the Court and is probative of nothing.

The allegations as to the failure of the Interim Superintendent of Schools to sign and file his oath of office is not appropriate in this proceeding and, in any event, by the time Petitioner started the Article 78 proceeding, the Interim Superintendent had signed and filed his oath of office. That error does not affect any actions taken here.

That leaves the real issues of the violations of the Open Meetings Law. The law requires the Respondent to publish notice of the time and place of every meeting including the executive sessions. Actually, an executive session can only [*3]be held within a regularly commenced and noticed meeting. The notice is to be given to the press one week before the meeting and at least 72 hours before the meeting a notice is to be posted in a public place.There is an exception to the notice requirements that says public notice will be given as soon as practicable when the meeting has to be held sooner than 72 hours. Public Officers Law Section 104. The exception requires that "Public notice of the time and place of every other meeting shall be given, to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a reasonable time prior thereto." It appears that Respondents have been noticing the public meeting for 7:30 p.m. on whatever night the meeting is to be held. They then schedule an executive session at 6:00 or 6:30 p.m. According to the minutes of the meetings submitted to the Court from July 6, 2010 until December 6, 2010, the Board President has called the regular meeting to order at about 6:00 or 6:30 and then immediately there has been a motion to go into an executive session. Until approximately November 2010, those motions were simply a motion to go into an executive session. No reason was given for the executive session. On several occasions, the Board would then adjourn the regular meeting directly from the executive session which is not permitted.

A public body is required to give notice of the regular meeting for its actual starting time including the executive session. It then opens the regular meeting and may then entertain a motion to go into an executive session. The motion to go into an executive session must have a reason stated. Public Officers Law Section 105 provides eight topics that can be discussed in the executive session. For example, the reasons can be "to discuss litigation", "to discuss a particular personnel matter" or "to discuss labor matters". There is no requirement that it be more specific such as to "discuss litigation concerning Jane Doe". Then the Board needs a motion to return to regular session and adjourn from the regular meeting not from the executive session. All of this has to do with how the public knows when the Board will or will not be taking public action on matters.

On July 6, August 12, August 17, August 31, September 21, October 19, October 21, November 1, November 16 and December 7, 2010, the Respondents failed to properly follow one or more of the Open Meetings Law requirements as to notice of the meetings and/or failing to set forth any reason for going into executive session. At several of these meetings, the Board also adjourned the regular meeting directly from the executive session without ever returning to their regular meeting.

It is necessary to set forth the reason for the executive session as a guidepost to Board members that other matters are not to be discussed in the executive session no matter how tempting it is to discuss other issues once they are in an executive session. The motion reminds everyone that the executive session is only on that issue mentioned in the motion.

I am granting Petitioner's request to declare that the executive sessions conducted on several dates violated the Open Meetings Law.

I am granting Petitioner's request to declare that Respondents shall disclose the subjects to be discussed at executive sessions held in the future in accordance within the limitations of the Open Meeting Law.

I am denying Petitioner's request to require Respondents to disclose what litigation matters were discussed in the executive session on December 7, 2010, [*4]

The Respondents have violated the Open Meetings Law. Having made that determination, Public Officers Law Section 107 states Petitioner's remedy. It provides that any individual such as Petitioner has standing to commence an Article 78 proceeding such as this one. The Court has the power to actually declare void actions taken at meetings held in violation of the Open Meetings Laws. Note, that such a determination would be without prejudice to the School Board to redo the actions. The statute anticipates that inadvertent failure to comply with the Open Meetings Law requirement of notice "shall not alone be grounds for invalidating any action taken at a meeting of a public body." Here, I have already determined that I will not overturn any actions taken by the School Board. I do believe the errors were inadvertent but they were numerous. Public Officers Law Section 107 provides for alternative remedies. It allows the Court to award Petitioner costs and reasonable attorney fees to a successful party. Petitioner has been successful in her Petition, and therefore, I am awarding her reasonable costs and attorney's fees. Counsel for Petitioner shall submit an appropriate application.

Submit order accordingly.

Hon. Diane Y. Devlin

Justice of the Supreme Court

Dated:May 18, 2011

Buffalo, New York