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The illegal meetings of Western New York

The University at Buffalo Council for years has violated Open Meetings Law by improperly moving its public meetings behind closed doors.

The Council, a public body charged with overseeing and advising the university president, has routinely run afoul of the requirements of state law when it comes to entering into executive session.

It happened at the Council's most recent meeting in September, when a UB professor called Council members on it but was ignored.

The Council isn't alone, according to the Buffalo Niagara Coalition for Open Government, a local watchdog group. In Erie and Niagara counties, governmental bodies regularly failed to spell out why they move their discussions behind closed doors, according to a coalition report released Thursday. Town and village boards on 76 of 78 occasions over a six-month period offered inadequate explanations for entering into executive session, the report states.

"I never expected to find 97 percent of the motions to be incorrect," said Paul Wolf, a local attorney and president of the coalition. "We need to do this differently. We're not doing it correctly. It's just a culture, a tradition, that we're trying to shine a light on."

The coalition report examined eight public bodies from Erie County and eight from Niagara County. It did not include the UB Council.

Public bodies may have a legitimate reason to keep some deliberations private. But they are required to state in a formal motion one of eight legal purposes for the executive session and then have a majority vote on the motion to be able to proceed into executive session, according to the state Open Meetings Law. Legal purposes include matters that would imperil the public safety or identify a law enforcement agent or informer if disclosed; discussions about litigation; and information relating to current or future investigation of a criminal offense that would imperil effective law enforcement if disclosed.

"To comply with law, a reason for entering into executive session must be expressed, and that reason must be consistent with the purposes outlined in the law," said Robert J. Freeman, executive director of the New York State Committee on Open Government. "A board simply cannot close the doors for a reason of its choice."

Town governments frequently cited litigation, contractual matters or "personnel" issues as reasons for entering into executive session, but those general statements are not specific enough to satisfy the requirements of the law. "Personnel" isn't even listed among the eight legal purposes for an executive session.

At some UB Council meetings, no reason at all was offered for entering into executive session.

At a meeting in March, Jeremy M. Jacobs Sr., who is chairman of Delaware North Co. and owner of the Boston Bruins, didn’t request a motion or a vote. He just asked non-Council members to leave the room. “So we’re going to go to executive session, so everybody get out of here,” he said at the time. (Derek Gee/News file photo)

The Sept. 25 meeting, for example, was winding down when UB English professor James Holstun raised his arm and asked for an opportunity to make a point.

Jeremy M. Jacobs, chairman of the Council, was ready to move on.

"Do I have a motion to adjourn to executive session?" Jacobs asked.

Holstun persisted.

"Excuse me," the professor said. "I'd like to make a point of order regarding New York State Public Officers Law, which I believe you're not following."

Jacobs continued on with his request for a motion. No one audibly stated a motion to go into executive or a reason why it was necessary to do so. Jacobs then asked for a second to the motion and announced that the Council was going into executive session.

Most people who were not seated at the board table inside the Capen Hall conference room rose from their seats to leave the room. Holstun piped up again.

"You just violated section 105 of article seven of New York State public officers law," he said.

None of the other Council members and none of the senior UB leadership team in attendance, including President Satish K. Tripathi and Provost Charles F. Zukoski, raised a concern about the manner in which the public meeting was moved into a closed-door session.

The makeup of the Council

Nine Council members are appointed by the governor and serve seven-year terms. A 10th member is a student representative. The Council meets three or four times per year. Other current members of the Council are: Robert T. Brady, executive chairman of Moog Inc.; Michael W. Cropp, president and chief executive officer of Independent Health; Jonathan A. Dandes, president of Rich Baseball Operations; Scott E. Friedman, chairman and chief executive officer of Lippes Mathias Wexler Friedman LLP; Pamela Davis Heilman, of counsel, Hodgson Russ, LLP; June Williams Hoeflich, retired president and chief executive officer of Sheehan Health Network; Christopher H. Koch, chief executive officer of New Era Cap Company; and Mike Brown, a UB junior. One seat is vacant.

A university spokesman was contacted this week about the Council's penchant for moving behind closed doors without offering a reason for it. The spokesman said that Jacobs did not intend to enter into executive session improperly.

The UB spokesman provided a prepared statement to The News: "Mr. Jacobs takes his role as chair of the UB Council very seriously and with the best intentions. When the University at Buffalo Council adjourns into executive session, it is for the purpose of discussing subjects pursuant to New York State Public Officers Law Section 105."

Violating the Open Meetings Law is punishable by a court order requiring that members of a public body participate in a training session with staff of the committee on open government.

The Council has shown a pattern over at least five years of improperly moving into executive session. On several occasions since 2012, it neither stated a legal purpose nor properly voted.

At a meeting earlier this year in March, Jacobs, who is chairman of Delaware North Co. and owner of the Boston Bruins, didn't request a motion or a vote. He just asked non-Council members to leave the room.

"So we're going to go to executive session, so everybody get out of here," he said.

Jacobs ended the public portion of an Aug. 26, 2015, meeting similarly, saying "I think that's it for this meeting, and then we'll go into executive session."

On Sept. 15, 2014, Jacobs asked for a motion to adjourn to executive session, but again the Council did not take a vote on why. He told people to leave after the motion was seconded.

"We're now in executive session and everybody else get out," he said.

Some Council meetings over the past few years concluded without an executive session. But no legal purposes for executive sessions were stated on Sept. 16, 2013; March 4, 2013; Jan. 14, 2013, and Oct. 1, 2012, according to a review of archived webcasts of those meetings.

Holstun said he was fed up watching the Council blatantly disregard Open Meetings Law. He decided to speak up.

"It's astonishing," Holstun said. "He just makes a motion and then some echo in the room seconds him and that's enough. It's like a Delaware North board committee meeting."

It happens in local government, too

Among the local governments, the Lewiston Town Board entered into executive session 11 times between Jan. 1 and July 1, the most of any public body. The Cheektowaga Town Board was second with 10 executive sessions. The Erie County Legislature and Buffalo Common Council were among five public bodies that did not have any  executive sessions during that time.

Town boards in West Seneca and Tonawanda spent more time in executive sessions than they did in the public portions of several meetings, Wolf said.

"I hope people aren't going behind closed doors just to hide things from the public," he said.

West Seneca Town Supervisor Sheila M. Meegan disputed that the West Seneca board hadn't properly cited reasons to enter into executive sessions.

"We do everything the way we have been schooled to do," she said.

The town has been in negotiations with highway, buildings and grounds and sewer employees. Board members went into executive session primarily to discuss negotiations, she said.

"Of course those are going to be long and detailed," said Meegan. Some of the executive sessions also involved discussions about discipline for specific employees, she said.

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