In an advisory opinion sought by the Talk of the Sound and published on June 10, 2010, the New York State Committee on Open Government has informed the City Council of New Rochelle that the given reason for going into executive session is not valid.
Robert J. Freeman, Executive Director of the New York State Committee on Open Government writes:
...the Open Meetings Law is based on a presumption of openness, and meetings of public bodies must be conducted open to the public, except to the extent that an executive session may properly be conducted in accordance with paragraphs (a) through (h) of§ 105(1). Consequently,
a public body, such as a city council, cannot enter into an executive session to discuss the subject of its choice.
...the grounds for entry into executive session are based on the need to avoid some sort of harm that would arise by means of public discussion...Specifically, §I05(1 )(h) of the Open Meetings Law permits a public body to enter into executive session to discuss: "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."
Neither the Mayor nor members of the City Council have provided support for a claim that Capelli or the City is PROPOSING to acquire, sell or lease property. Based on a review of the agenda for the June 23rd IDA meeting published shortly after the City Council meeting, the discussion appears to have been about the LeCount Square Project, Parcel 1A (Trump Tower) and New City City none of which involved proposed sales, leases or acquisitions.
As Freeman notes, even if the meeting did involve the sale, acquisition or lease of real property that alone would not be sufficient:
It is clear that §105(1)(h) does not permit public bodies to conduct executive sessions to discuss all matters that may relate to the transaction of real property; only to the extent that publicity would "substantially affect the value of the property" can that provision validly be asserted. its proper assertion is limited to situations in which publicity would have a substantial effect on the value of the property...when details concerning a potential real property transaction, such as the location and potential uses of the property, are known to the public, publicity would have a lesser effect or impact on the value of the parcel. Again, the more that is known to the public, the less likely it is that publicity would affect the value of a parcel. And finally, if the issue did not involve the proposed acquisition, sale or lease of real property, §105(1)(h) would not, in my view, serve as a valid basis for conducting an executive session.