Zehner Decision and Order

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PRESENT: HON. DONALD A. GREENWOOD

Supreme Court Justice

At II. Motion Term of the Supreme

Court of the State ofNew York,

held in and for the County of

Onondaga on September 29; 2010.

STATE OF NE\V YORK

SUPREME COURT COUNTY OF ONONDAGA

In the Matter ofDAVID ZEHNER,

Petitioner,

DECISION AND ORDER

ON MOTION t:L.r.J

v.

Pursuant to Civil Practice La.w$ and Rules, Article 78

Respondents;

Index No.: 2010-4926

RJI No.: 33-10-4203

STEPHEN CIOTOLI, ESQ., OF O'Hl'....I"{A, O'CONNELL & CIOTOLI

Fo r Petitioner

APPEARAl'-.JCES:

THE BOARD OF EDUCATIONOF THE JORDAN

ELBRIDGE CENTRAL SCHOOL DISTRICT and

SUE GORTON in her capacity a.s Assistant

Superintendent of Instruction and as the purported

Interim Superintendent;

FRANK w. MILLER, ESQ.; OF THE LAW FIRM OF FRANKW.

MILLER

For Respondents

This petition is brought pursuant to CPLR Article 78 and alleges that the respondent,

Board of Education of the Jordan-ElbridgeCentral School District (hereinafter "the Board"),

violated the Open Meetings Law on July 21, 2010 when it appointed respondent Sue Gorton as

Interim Superintendent in Executive Session. According to the petition, the agenda published for

thatmeeting did not m.ake any reference to the topic of tt Superintendent search or the

appointJ:rient of an Interim Superintendent of school$. On July 30, 2010, the Board issued a



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public informatiOti bulletin to the school community, stating that "[t]he Board has decided to

appoint as Interim Superintendent, Ms. Sue Gorton effective November 1, 2010, In order to

ensure a seamless transition, Ms. Gorton will begin working this summer on District-wide

matters withMrs. Dom.injck." Marilyn Dominick is the current Superintendent, who is

scheduled to retire onNovember 1, 2010. Thereafter on August 3j 201 OJ p e t i . t i o n e r ~ s counsel

notified the Board by letter that the appointment ofGorton was in violation of the Open Meetings

Law and that it was not properly noticed on the meeting agenda or discussed in open session. No

response was receivedand

the Board's minutesfTom

August 4,2010 and August 18,2010show

that no discussion was held at eithermeeting 'With respect to this issue.

The petitioner seeks an order of tb.is Court declaring that the Board's actions to appoint

Gorton as Interim Superintendent while in Executive Session violated the Open Meetings Law

and is therefore null and void; that there is no statutory basis for the Board's action purporting to

appoint an employee to the position of Interim Superintendent without a public vote or

discussion and that the action is therefore null and void as being ultra vires l arbitrary, capricious

and an abuse of discretion; and that the Board is to refrain fn'm any further violations of the

conditions and requirements of the Open Meetings Law and Public Officers Law. In addition,

the petitioner seeks costs and reasonable attorney's fees.

I. Stnnding

The Board argues that the petitioner lacks standing to bring this action inasmuch as he

does not fall within the zone of interest protected by the statute. See, SocietyQfPlastics Indus, v,

County ofSuffolk, 77 NY2d 761 (1991). The standing of a party to seek judicial review of a

claim or controversy is a threshold matter which must be resolved by this Court before· the merits

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of the appHcation may be considered. See. id. The Court ofAppeals has noted that the Public

Officers Law states in part that "[e]verymeeting ofa public body shaH be open to the general

public." Gordon v, Village o.fMonticello, Inc" 87 NY2d 124 (1995), quoting, Public Officers

LaH' §103. It further emphasized the Legislative preamble to the statute which states "[iJt is

essential to the maintenance of a democratic society that the public business be performed in. an

open and pubIie manner and that the citizens of this sta.te be fully aware of and able to observe

the performance ofpublic officials." Id. This ml.lst be differentiated from cases involving

environmental harm, where the Court ofAppeals has acknowledged the imposition of standing

barriers because such litigation "can generate interminable delay and interference with crucial

government projects:' Save the Pine Bu.sh, Inc, v, Comm01'i Council o/City o/Albany, 13 NY3d

297 (2009), quoting, Society ofPlastics, supra. In the present case, the petitioner, a member of

the general public, a district 1:a.,:payer, and employee of the school district, clearly has established

that he is in the zone of interest that the Open Meetings Law is designed to protect. Moreover,

and most i m p o r t a n t l y ~ he, was in attendance at the meeting in question when the Executive

Session was called and the public. was excluded and he is a member of the citizenry aggrieved by

the alleged violation. See, Sanna v. LindenhurstBoard ofEducation, 85 AD2d 157 (2d Dept.

1982). As a I'lVvwl attendee of the meeting in question, the petitioner is an aggrieved party and

has standing to challenge the school Board's activities. See, id.1 Inasmuch as the petitioner has

standing to challenge the Board's actions, the merits ofthe petition may be considered,

I Moreover, where a court's decision to deny standing would effectively insulate the

government's action from judicial review, a court has discretion to find that standing exists. See, Rudde.r

1!, Pataki, 93 NY2d 273 (J 999), citing, Borys:!:twski v. Brydges, 37 NY2d 361 (1975),

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II. The Motion to Adjourn to Executive Session

The Open Meetings Law "was intended as its very name suggests - to open the decision

making process of elected officials to the pu.blic while at the same time protecting the ability of

the govet1mlent to carry out its responsibilities." Gordon v. Village ofMonticello" Inc., 87 NY2d

124 (1995); see also, Pu.blic Officers Law §100 et seq. The Legislature stated in its preamble to

the statute that "[i]t is essential to the maintenance of a democratic society that the public

business be performed in an open and public manner and that the citizens of the state be fully

aware of and able to observe the performance of public officials." ld, quoiiltg, Public qfficers

Lm",,' §1DO. The provisions of the law are to be liberally construed in accordance with the

statute's purposes. See, Matter ofOrange County Publications v, Council olCity ofNewburgh,

45 NY2d 947 (1978).

Pursuant to the Education Law, meetings of the board of education must be open to the

public, but boards may hold Executive Sessions atwhich sessions only the members of such

boards or the persons invited shall be present; See, Education LffiV §1708(3). The procedure and

substance of those sessions is subject to the limitations of the Open Meetings Law. See, Previdi

v. Hirsh, 138 Misc.2d 436 (1998), citing, Public Officers Law §§ 100 to 111. In fact, pursuant to

the Open Meetings Law, a public bodymay conduct an Executive Session only for certain

limited purposes and the enumerated instances for convening an Executive Sessi6n represent

exceptions to the general rule of openness; these topics are circumscribed by statute and must

therefore be narrowly scrutinized. See. Public Officers Lmv §105(l); see also. Daily Gazette Co,)

Inc. v, Town Board, Town ofCobbleskill, 111 Misc.2d 303 ([ 981). Eight purposes arc

enumerated in the statute. See, id. As this Court has previOUlsly noted, the thmst of the, Open

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Meetings Law is "the performance of pUblic business in an Clpen and public manner with the

public able to attend and listen to the deliberations and decisions that go into the making of

public pOlicy." See, Brander v. Town ofWarren Board, 18 Mise.3d 477 ( 2 0 0 7 ) ~ quoting, .Matter

qfSciolino v. Ryan, 81 AD2d 475 ( 4 1 ~ Dept. 1981). This Court therefore i,$ required to

\'scrutinize the propriety of executive s e s ~ i o n s lest, the ...mandate be thwarted by thinly veiled

references to the areas delineated thereunder." Itt, citing, Gcrnaft Asphalt Products, Inc. l'. Town

o . r S a r d i n i a ~ 208 AD2d 139 (4 th Dept. 1995).

The Board violated the OpenMeetings Law in several ways. First, the Board failed to

give a sufficient reason for adjourning to Executive Session. The minutes from the July 21, 2010

Board meeting indicate that the Board adjourned to Executive Session for four of the eight

enum.erated purposes, as copied verbatim from the statute. See, Public Officers Law §105. No

further information was provided. However, this is insufficient. Vv'bile any motion to go into

Executive Session must identify the general area to be considered, it is insufficient to "'merely

regurgitate the statutory language...this boiler plate recitation does not complywith the intent of

the statute." Daily Gazette, supra. Instead, to validly convene an Executive Session for

discussion, the public entity must identify with particularity the topic to be d i s c u s s e d ~ since only

through such identification will the purposes of the Open Me:etings Law be realized. See, id.

Therefore, the Board was required to be more specific in its resolution and its faihtre to db so

constituted a violation ofthe OpenMeetings Law.

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III. Discussion in Executive Session

The Board also violated the law by discussing the issue of the Superintendent search in

Executive Session. Board President Mary Alley, in her affidavit, acknowledges "discussing and

addressing the issue of a searc.h for a new Superintendent" Alley ajjl.davit, Paragraph 6. There

is no exception for this type of discussion in the Open Meetings Law to take place in Executive

Session. This is preci:;;e1.y the type of issue that is required to be discussed in an open meeting, It

is a policy discussion by the Board, which is not a legal matter for Executive Session. The

qualities and qualifications that the Board is seeking in a Superintendent, as well as the process

which it intends to utilize, are matters for public observation in a publjc meeting. The ability to

adjourn to Executive Session is a statutory exemption l i m i t e d ~ on the facts of this ease, to

discussing the prospective appointment of a particular individual. It is a separate step that the

Board may consider i£it truly needs to address confidential matters about that individual and is

not to be used as an. all-encompassing exemption. The appointment process must not occur

behind closed doors. Therefore, by discu.ssing the search for a new Superintendent in Ex.ecuti.ve

Session the Board violated the Open Meetings Law.

IV. Appointment ofRespondent Gorton

This Court must next determine whether the Board violated the Open Meetings Law by

appointing respondent Gorton as Interim Superintendent. The Board has submitted affidavits

from Superintendent Dominick; School Board President Alley; and Gorton herself, all denying

that a fonnal appointment was made. Respondents argue that the petition is therefore, premature.

This Court d.isagrees. The act of discussing and coming to a consensus in Executive Session; but

not passing a formal resolution, docs not shield the Board from a violation of the law. The Open

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Meetings Law was designed to assure the public's right to be informed and it is the entire

decision making process which the Legislature intended to affect by the statute, not c:rn]y formal

acts of voting or formal executions of documents. See, Orange County Publications.. supra. The

aforemention.ed affidavits were prepared only for this litigation and attempt to recast the facts.

The Board, through the S u p e r i n t e n d e n t ~ the duly appointed agent pursuant to its QvVO rules,2

issued a public infonnation bulletin on its official website advising the public that .1t had

appointed Gorton as Inte:dm Superintendent. The Board now argues that this was merely a

mistake that the publicity "got ahead of ' the formal action. However, it was on.ly during the

course of this litigation that the Board has recanted the statement and it has taken no action

d,irecdy or through its Superintendent to correct the p u r p o r t c ~ d appointment3 The process has

now been tainted and suggests to the public that there will be no deliberation or discussion.

because the outcome has already been determined, with the public vote being a mere formality.4

Inasmuch as the Board members participated in a privatemeeting with a quorum of Board

members p r e s e n t ~ where topics for discussion and eventual decision are su,ch as would othen-vise

arise at a regular meeting occurred, the Board has violated the Open Meetings Law. See, id.

V. Remedies

Pursuant to the Public Officers Law, the petitionermay seek a declaratory judgment and

injunctive reliefwith respect to the alleged violations. See, Public Officers Law §l07. This

2 See, Jordan-Elbridge Central School D i . ~ t r i 6 t BO(l1"dPolicy §4320 "Superintmdent-Board of

Education Relations)'

3 The Board met on tvvo subsequent occasions and the option of a special meeting was alsoavaHabl¢ to it.

4 As of the date of this Decision, the Board has posted on its w e b s i t ~ that " [ t J h ~ Board of

Education will be appointing Susan Gorton ...as Interim Superintendent while we conduct our search."

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Court is empowered, in its discretion, upon good cause ShO'l,Vll, to declare any action or part

thereof taken in violation of the OpenMeetings Law to be void in whole or in part. See, id.

Given the unique circumstances of this case and the good C ~ L u s e shm.\rn, this Court, in its

discretion. hereby declares void any act of the Board which purported to name respondent Gorton

as Interim Superintendent.

With respect to the petitioner's request for attorney's f e e ~ not every violation of the Open

Meetings Law aut01:natically triggers its enforcement sanctions; an award of attorney's fees

should not be granted by courts to the prevailing party simply as a matter of course. See, id. This

Court agrees with the petitioner that he should have not have been required to go to court to

enforce the law and that he is now further aggrieved by incurring attorney's fees. While the

Board has violated the OpenMeetings f,..,aw in this case, the appellate courts have set a high bar

for the recovery of attorney's fees and the petitioner has failed to establish in the record before

this Court "a persistent pattern of deliberate violations" of the Open Meetings Law, Reese v.

Daines, 62 AD3d 1254 (4th

Dept. 2009), quoting, Matter o f G o e s t s c h i u , ~ v. EoardofEduc, Of

Greenburgh Eleven Union Free District, 244 AD2d 552 (2d Dept. 1997). Nor does the record.

establish "obvious prejudice" to the petitioner as a result of the Board's ,cintentional and deceitful

cond.uct." See, Gordon, supra.

NO"'"", therefore. for the foregoing reasons, it is

ORDERED AND DECLARED, that upon good caL'tse shov.rn, that any purported action

by the Board that appointed respondent Sue Gorton as Interim Superintendent violated the Open

Meetings Law and is therefore void, and it is further

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ORDERED, that the petitioner's request for costs and reasonable attomey's fees

pursuant to Public Officers Law §107(2) is denied.

Dated: October 1,2010

S;rracuse. New York

D··· ALD A. GREENWOOD

Supreme Court .Justice

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Zehner Decision and Order

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