Committee On Open Government Issues Advisory Opinion On School Board Actions

The executive director of the New York State responded to complaints about the Clarkstown Board of Education filed by New City resident and former school board member Rhea Vogel.  The three school board meetings, which Vogel said violated the Open Meetings Law, took place on October 24, November 3 and November 22, 2011.  Freeman’s opinion found some fault with the board’s action on November 22.

“I wish I had gotten favorable opinions on all three meetings,” Vogel said Tuesday. 

Freeman sent out his advisory opinions on August 9, which was eight months after Vogel submitted her complaints. Freeman’s five-page advisory opinion letter, which was sent directly to Vogel, Berbit and the board of education, provides guidelines. Current Board President Joe Malgieri said he received the document but had not had a chance to review it. Former Board President Doug Katz said he had not been sent a copy but hope to receive one. Berbit was not available to comment.

The advisory opinion was based on materials submitted by Vogel and Warren Berbit, general counsel for the Clarkstown School Board.  Freeman stated he did not review all the exhibits sent by Vogel. Her extensive complaint sent on December 8, 2011 included 150 pages with news articles, web site discussions, Facebook postings plus a video. Berbit’s letter refuting Vogel’s complaints was sent in April. 

Freeman wrote that descriptions of events were at odds with each other. 

“It is noted that the versions of events that you have described are, in some instances inconsistent. While I am not questioning the veracity of either of you, it is clear that perceptions regarding the same events are different.”

The first alleged violation of the Open Meetings Law cited by Vogel occurred on October 24 when the board scheduled presentation by a consultant being considered to evaluate the district’s special education program.  Her complaint charged that the board did not take appropriate steps to make sure there was sufficient room for attendees.

In his response Berbit noted that discussions between the board president and vice president and superintendent were hold prior to the meeting. The board officers said they were not certain how many people might attend but had arranged a video feed in a nearby conference room as a precaution.    

Freeman referred to Section 103 of the Open Meetings Law, which states public bodies shall make reasonable efforts to ensure meetings are held in locations where the public can be accommodated.

The November 3 special meeting was called to authorize legal coverage of the two board member who were the subjects of petitions filed with the state board of education to remove them. Vogel pointed out the meeting was held several days after a major October snowstorm that blocked roads and interrupted power service, forcing some people from their homes. She contended the day and morning time of the meeting were calculated to discourage people from attending. Vogel also noted that the meeting was not recorded or webcast and the public were not permitted to speak. 

Berbit responded that the meeting was scheduled to accommodate board members and had to transpire within a certain time frame. Additionally, he specified the board’s policy for special meetings “indicates that those meetings need not be recorded or webcast and that public comment need not be accepted.”

Freeman wrote, “it is noted that the Open Meetings Law is silent with respect to any obligations imposed upon a public body to record or webcast its meetings.” Additionally, he commented that the law does not specific the public right to comment or participate in a meeting.

Regarding the third meeting, Vogel contended the November 22 executive session wit the firm handling the search for a new superintendent should have been a public meeting that it did not meet the criteria for a closed session. Berbit wrote the executive session was held in order to avoid embarrassing the superintendent in public because discussion was expected to take place about “characteristics that some board members perceived as deficient in the current superintendent….”

Katz said the board did restrict its discussion in executive session and that at its next meeting, the consultant returned and there was a public discussion and vote.

Freeman advised that the entirety of the topic discussed at the executive session possibly could have been divided. The portion that did not directly involved or focus on the superintendent could have been held in public.

“To the extent that discussion of the matter could have been segmented via consideration of the search process or procedure, as opposed to consideration of attributes, strengths, weaknesses or performance of the Superintendent, I believe that the Board should have done so,” Freeman wrote. “The latter, in my view, would likely have involved “the employment history of a particular person.” To that extent I believe that an executive session could appropriately been held. The remainder of the discussion that did not focus on the Superintendent or any particular candidate or applicant for the position should have occurred in public.”  

Vogel was pleased that some parameters were recommended for school boards and other organizations. 

“I’m happy about the decision on that meeting,” she said. “I think it gives instruction to other bodies, other boards,” she said.