| Matter of Zehner v Board of Educ. of Jordan-Elbridge Cent. SchoolDist. |
| 2012 NY Slip Op 00623 [91 AD3d 1349] |
| January 31, 2012 |
| Appellate Division, Fourth Department |
| In the Matter of David Zehner, Respondent, v Board ofEducation of Jordan-Elbridge Central School District, Appellant. |
[*1]Appeal from a judgment (denominated order) of the Supreme Court, Onondaga County (DonaldA. Greenwood, J.), entered January 20, 2011 in a CPLR article 78 proceeding and a declaratoryjudgment action. The judgment, among other things, adjudged that respondent-defendant violatedthe Open Meetings Law on three separate occasions.
It is hereby ordered that the judgment so appealed from is unanimously affirmed withoutcosts.
Memorandum: Petitioner-plaintiff (petitioner) commenced this hybrid CPLR article 78proceeding and declaratory judgment action alleging that respondent-defendant (respondent)engaged in a pattern of violating New York's Open Meetings Law (Public Officers Law . 100 etseq.) and seeking reimbursement for his attorney fees. We note at the outset that this is properlyonly a CPLR article 78 proceeding inasmuch as petitioner does not "challenge theconstitutionality of any statutes or regulations" (Matter of Custom Topsoil, Inc. v City of Buffalo,63 AD3d 1511, 1511 [2009]).
We reject respondent's contention that Supreme Court erred in determining that itviolated the Open Meetings Law on three occasions. "Every meeting of a public body shall beopen to the general public, except that an executive session of such body may be called andbusiness transacted thereat in accordance with [section 105]" (Public Officers Law . 103 [a]). Atsuch an executive session, i.e., "that portion of a meeting not open to the general public" (. 102[3]), the topics that may be discussed are circumscribed by statute and include matters involvingpublic safety, proposed, pending or current litigation, collective bargaining, and mattersconcerning the appointment or employment status of a particular person (. 105 [1]). The purposeof the Open Meetings Law is to prevent public bodies from debating and deciding in privatematters that they are required to debate and decide in public, i.e., "deliberations and decisionsthat go into the making of public policy" (Matter of Sciolino v Ryan, 81 AD2d 475, 477 [1981];see Matter of Gordon v Village of Monticello, 87 NY2d 124, 126-127 [1995], revg 207 AD2d 55[1994] insofar as appealed from on other grounds). In this case, the court properly determinedthat respondent violated the Open[*2] Meetings Law on three occasions by merely reciting statutorycategories for going into executive session without setting forth more precise reasons for doingso. Given the overriding purpose of the Open Meetings Law, section 105 is to be strictlyconstrued, and the real purpose of an executive session will be carefully scrutinized "lest the . . .mandate [of the Open Meetings Law] be thwarted by thinly veiled references to the areasdelineated thereunder" (Daily Gazette Co. v Town Bd., Town of Cobleskill, 111 Misc 2d 303,304 [Sup Ct, Schoharie County 1981]; see e.g. Gordon, 207 AD2d 55).
We further reject respondent's contention that the court abused its discretion in awardingattorney fees to petitioner. Pursuant to the Open Meetings Law, "costs and reasonable attorneyfees may be awarded by the court, in its discretion, to the successful party" (Public Officers Law .107 [2]). Determining the appropriate remedy for respondent's actions is thus expressly a matterof judicial discretion (see Matter of Sanna v Lindenhurst Bd. of Educ., 85 AD2d 157, 159[1982], affd 58 NY2d 626 [1982]), and we perceive no abuse of the court's discretion inawarding attorney fees to petitioner (see Matter of Goetschius v Board of Educ. of GreenburghEleven Union Free School Dist., 281 AD2d 416, 417 [2001]). Present Scudder, P.J., Smith,Sconiers, Gorski and Martoche, JJ. [Prior Case History: 31 Misc 3d 1029.]