What is an executive session?
An executive session is the portion of the school board meeting that is not open to the public and is only permitted for a limited number of specific purposes.
Who can enter into an executive session?
- Board of Education (school board)
- Audit Committee
How do you enter
into an executive session?
An executive session can only occur upon a majority vote of the total membership of the board taken at an open meeting (Pub. Off. Law § 105 (1)), which means that a school board cannot schedule an executive session in advance (e.g., Executive Session at 6:00 p.m. and Public Meeting at 6:30 p.m.) (NYS Department of State, Committee on Open Government OML-AO-3339, July 23, 2001). However, the meeting’s agenda can indicate that there is a “Proposed executive session, subject to Board approval” or that “It is anticipated that the Board will act upon a resolution to convene an executive session (NYS Department of State, Committee on Open Government OML-AO-2426, Nov. 23, 1994).
In addition, the motion to go into executive session must be specific as to the subject matter of the executive session. For example:
- It is insufficient to merely regurgitate the statutory language such as “discussions regarding proposed or pending litigation, without identifying the particular litigation (Daily Gazette v. Cobleskill, 111 Misc.2d 303 (Sup. Ct. Schoharie Co. 1981)); NYS Department of State, Committee on Open Government OML-AO-5259, Mar. 8, 2012; OMLAO-3654, July 10, 2003).
- There is no authority to go into executive session for the purpose of discussing “personnel matters.” A school board does not need to identify who it is going to talk about, but it must disclose what it is going to talk about (e.g., “to discuss the discipline of a particular employee” such motion would not need to identify the employee’s name or title) (see NYS Department of State, Committee on Open Government, OML-AO-5259, Mar. 8, 2012; OML-AO-3478, June 26, 2002).
- There is no authority to go into executive session to discuss the qualities and qualifications that the Board is seeking in a superintendent, as well as the process which the board intends to utilize to conduct a superintendent search (Zehner v. Board of Educ. of Jordan-Elbridge CSD, 29 Misc.3d 1206 (Onondaga Co. 2010)).
How long can an executive session be?
There is no time limit on the length of an executive session (Matter of Thomas, 10 Ed. Dep’t Rep. 108 (1971)).
Can an executive session be recorded?
The taping of an executive session is improper and violates the confidentiality that is encompassed in an executive session (Stephenson v. Bd. of Educ. Of Hamburg CSD, 31 Misc.3d 1227 (Erie Cnty. 2011)).
When can a Board enter
into executive session?
Per Public Officers Law Section 105, upon a majority vote of a board’s total membership, taken in an open meeting pursuant to a motion identifying the general area or areas of the subject or subjects to be considered, a public body may conduct an executive session for the below enumerated purposes only, provided, however, that no action by formal vote shall be taken to appropriate public moneys:
- matters which will imperil the public safety if disclosed;
- any matter which may disclose the identity of a law enforcement agent or informer;
- information relating to current or future investigation or prosecution of a criminal offense which would imperil effective law enforcement if disclosed;
- discussions regarding proposed, pending or current litigation;
- collective negotiations pursuant to article fourteen of the civil service law;
- the medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation;
- the preparation, grading or administration of examinations; and
- the proposed acquisition, sale or lease of real property or the proposed acquisition of securities, or sale or exchange of securities held by such public body, but only when publicity would substantially affect the value thereof.
Can an Audit Committee
enter into executive session?
Per Education Law Section 2116(b) the audit committee is responsible for assisting in the oversight of the internal audit function, including, but not limited to, providing recommendations regarding the appointment of the internal auditor for the school district, the review of significant findings and recommendations of the internal auditor, monitoring of the school district’s implementation of such recommendations, and the evaluation of the performance of the internal audit function.
Section 2116(c) states that a school district audit committee may conduct an executive session pursuant to Section 105 of the public officers law pertaining only to any of the below matters:
- meet with the external auditor prior to commencement of the audit;
- review and discuss with the external auditor any risk assessment of the district’s fiscal operations developed as part of the auditor’s responsibilities under governmental auditing standards for a financial statement audit and federal single audit standards if applicable; and/or
- receive and review the draft annual audit report and accompanying draft management letter and, working directly with the external auditor, assist the trustees or board of education in interpreting such documents.
Note: The matters cited above only reference the external auditor, not the internal auditor.
Further, per State of New York Department of State Committee on Open Government, an audit committee of a school district may enter into executive session only with respect to external audit issues as described in paragraphs (b), (c) and (d) (see NYS Department of State, Committee on Open Government, OML-AO-4625, May 9, 2008).
Written by Nicholle Mezier, CPA, MBA. If you would like to learn more about this topic, please contact:
Shari Diamond, CIA
Shari has been with Cerini & Associates, LLP since 2008 where she works primarily with the firm’s school district clients providing internal audit and claims audit services. She has over twenty years’ experience performing internal audits, risk assessments, and compliance reviews, as well as recommending processes to strengthen the internal controls environment while increasing efficiencies. Her prior experience at PWC and Northrop Grumman included performing Information Technology audits.