Long Beach at odds over open meetings law

State committee says private budget discussions should be open to public, but officials disagree with opinion

Posted

The New York State Committee on Open Government issued an opinion last month that the City Council violated an open meetings rule by discussing public business in private, because all of the members are of the same political party, though city officials insist that no laws were broken.

The City Council, currently all Democrats, holds regular public meetings twice a month as well as a number of public hearings to gather input before voting on items like the 2019-20 budget. Unlike the Board of Education, however, the council does not typically hold public work sessions or enter into executive sessions. Council members at times meet privately as a political caucus, officials said.

According to the Committee on Open Government, there are exemptions to the law for political caucusing. The committee said, however, that those exemptions do not apply when members are all of the same party and they gather to discuss public matters.

“If they were conducting a political committee meeting and they’re all members of one political party, the courts have held that they’re supposed to limit their discussions to political matters, and not public business,” Kristin O’Neill, the committee’s assistant director, told the Herald.

The committee issued an advisory opinion on April 22, and also cited a 1992 Eerie County Supreme Court case in which a judge ruled that the City of Buffalo Common Council violated the state’s open meetings law. Because all of the attendees were members of the same political party, the judge reasoned, a private meeting to discuss that city’s budget crisis at the time did not fall under a political caucus exemption to the law.

Acting City Manager Rob Agostisi insisted that the Long Beach council broke no rules. He said that the political caucus exemption applied to the council’s private deliberations, and that the Eerie County Supreme Court decision was not “binding.”

“I understand that’s the committee’s view . . . However, that’s based on one Supreme Court decision in Eerie County — that’s it,” Agostisi said at the May 7 council meeting. “That’s not binding here. It’s factually distinguishable, and frankly . . . we think that the court simply got it wrong.”

Some council members acknowledged that some of their recent private discussions — for which at least three members were present, constituting a quorum, or majority of the membership — included discussions about the proposed city budget.

Until Tuesday’s special meeting to discuss the $98 million spending plan, council members had not met privately to deliberate as a majority in the wake of the open government committee’s opinion.

Accusations of violations

The debate over whether the council had violated open meetings law was raised by resident John McNally, a supporter of Councilman John Bendo at a meeting on April 16, when he asked if the council had met to discuss the spending plan. “When we got the budget, some of us met with the acting city manager,” City Council President Anthony Eramo responded.

Council Vice President Chumi Diamond said that three members had met, including Eramo and Bendo, who switched from a registered independent to a Democrat last year.
“Three council members got together to discuss, among other things, attorney client matters,” Agostisi, who continues to serve as the city’s corporation counsel, said. “The budget is the end result of legislation.”

McNally claimed at the meeting that the council had violated the open meetings law, saying that members should have moved into an executive session, and adding that it was not exempt under the attorney-client privilege. Agostisi disagreed, as did Councilman Scott Mandel.

“This is the only elected body that I’ve ever witnessed that at least since 2012 . . . has not held a public working meeting or its general deliberations or discussion on business impacting the public in public,” McNally told the council.

Bendo and Councilwoman Anissa Moore said that some city business had been discussed among council members before the April 16 meeting. Bendo also said he had informed city officials and members of the council of his change in party affiliation, but could not recall when. Eramo and Diamond did not immediately return requests for comment.

“The few meetings we’ve had . . . we’ve discussed personnel issues, and those are not supposed to be open to the public,” Bendo said. “But if you’re discussing routine business . . . those should be open. I called the committee on open government myself, and the example I laid out for them was the City Council getting together to discuss the budget and if that was considered a political caucus. There was no ambiguity that a meeting like that falls within the scope of the open meetings law and would need to be open and accessible to the public.”

Bob Freeman, the committee’s executive director, said that the state’s exemption for political caucusing “is supposed to be construed narrowly in order to foster maximum public access.”

“If they’re discussing public business, where is the harm or the fear of doing so in public?” Freeman said. “You do the right thing.”

He also disagreed with the city over its interpretation of the Buffalo ruling and the attorney-client privilege. “It’s the only case that has dealt with the situation where members are of the same political party,” he said. “And if they’re talking about the budget, that’s an issue that involves policy, not matters of law.”

Bendo and Moore said they did not believe their deliberations on Tuesday violated open meetings law because their discussions involved personnel matters. Bendo, however, added that it should have been open to the public.

"Members of the council expressed their apprehension about meeting because of the information that was recently shared regarding the open meetings law,” Moore said, adding that she supports holding public work sessions. “At this point, I personally feel that it was important for us to meet because the city needs to function. We needed to have a conversation.”

Agostisi has acknowledged at council meetings that the council could choose to hold public work sessions.

At odds over advisory opinion, legal ruling

In an email to O’Neill, Agostisi disagreed with an advisory opinion that the committee issued on April 22 at the request of McNally.

McNally asked, in part, whether a public body was exempt from the open meetings law when it came to discussing the budget, either through executive session or attorney-client privilege.

In an opinion written by O’Neill, the committee said that if a quorum of the council met to discuss the proposed budget, “such a meeting must be conducted open to the public in compliance with” the open meetings law. The committee added that, in its opinion, the budget could not be characterized as an attorney work product.

Agostisi said that McNally either omitted or intentionally mischaracterized “material facts.”

The advisory opinion, he said, did not mention the state’s political caucus exemption or a 2007 Second Circuit Court of Appeals decision in Almonte v. City of Long Beach, which found that the 3-2 Republican majority of the council at the time had “legislative immunity” to meet privately at the home of the late former Corporation Counsel Charles Theofan to discuss budget matters prior to voting.

“While this case was decided in the context of a question regarding legislative immunity, the legitimacy of caucuses — which related specifically to the budget — was upheld,” Agostisi wrote of the Almonte ruling.

Agostisi also told O’Neill that no budget-specific meetings took place this year.
“Granted, I did make a statement about the budget being the ‘end product’ of legislation, but this was an offhand remark that was not, and did not, address the specific issues raised,” Agostisi wrote. “Moreover, I have never indicated that my mere presence at a meeting with council members can, in and of itself, shield that meeting from public.”

O’Neill acknowledged in an email to Agostisi that because she heard no mention of political caucuses in a video of the April 16 council meeting, only a reference to attorney-client privilege, it was not addressed in the committee’s opinion.

“I don’t know what occurred behind closed doors, even looking at the video,” O'Neill told the Herald. “Only a court can determine whether a violation has occurred.”

Still, in her email, O’Neill referred Agostisi to the Eerie County decision and previous advisory opinions regarding the political caucusing of one party.

“My understanding is that one council member is not affiliated with any party, but perhaps that has changed,” Agostisi wrote in response on April 22. “If so, we will be guided accordingly.”

“We appreciate the committee’s clarification of its advisory opinion,” the city said in a subsequent statement to the Herald. “We respectfully disagree, however, with its position on caucusing among members of a legislature who all belong to the same political party.”