        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

161
CA 11-01659
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, GORSKI, AND MARTOCHE, JJ.


IN THE MATTER OF DAVID ZEHNER,
PETITIONER-PLAINTIFF-RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BOARD OF EDUCATION OF JORDAN-ELBRIDGE CENTRAL
SCHOOL DISTRICT, RESPONDENT-DEFENDANT-APPELLANT.


THE LAW FIRM OF FRANK W. MILLER, EAST SYRACUSE (FRANK W. MILLER OF
COUNSEL), FOR RESPONDENT-DEFENDANT-APPELLANT.

O’HARA, O’CONNELL & CIOTOLI, FAYETTEVILLE (STEPHEN CIOTOLI OF
COUNSEL), FOR PETITIONER-PLAINTIFF-RESPONDENT.


     Appeal from a judgment (denominated order) of the Supreme Court,
Onondaga County (Donald A. Greenwood, J.), entered January 20, 2011 in
a CPLR article 78 proceeding and a declaratory judgment action. The
judgment, among other things, adjudged that respondent-defendant
violated the Open Meetings Law on three separate occasions.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Petitioner-plaintiff (petitioner) commenced this
hybrid CPLR article 78 proceeding 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
et seq.) and seeking reimbursement for his attorney fees. We note at
the outset that this is properly only a CPLR article 78 proceeding
inasmuch as petitioner does not “challenge the constitutionality of
any statutes or regulations” (Matter of Custom Topsoil, Inc. v City of
Buffalo, 63 AD3d 1511, 1511).

     We reject respondent’s contention that Supreme Court erred in
determining that it violated the Open Meetings Law on three occasions.
“Every meeting of a public body shall be open to the general public,
except that an executive session of such body may be called and
business transacted thereat in accordance with [section 105]” (Public
Officers Law § 103 [a]). At such 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 involving public safety, proposed, pending or current
litigation, collective bargaining, and matters concerning the
appointment or employment status of a particular person (§ 105 [1]).
                                 -2-                           161
                                                         CA 11-01659

The purpose of the Open Meetings Law is to prevent public bodies from
debating and deciding in private matters that they are required to
debate and decide in public, i.e., “deliberations and decisions that
go into the making of public policy” (Matter of Sciolino v Ryan, 81
AD2d 475; see Matter of Gordon v Village of Monticello, 87 NY2d 124,
126-127, revg 207 AD2d 55 insofar as appealed from on other grounds).
In this case, the court properly determined that respondent violated
the Open Meetings Law on three occasions by merely reciting statutory
categories for going into executive session without setting forth more
precise reasons for doing so. Given the overriding purpose of the
Open Meetings Law, section 105 is to be strictly construed, 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 areas delineated 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 awarding attorney fees to petitioner. Pursuant to
the Open Meetings Law, “costs and reasonable attorney fees 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 matter of judicial
discretion (see Matter of Sanna v Lindenhurst Bd. of Educ., 85 AD2d
157, 159, affd 58 NY2d 626), and we perceive no abuse of the court’s
discretion in awarding attorney fees to petitioner (see Matter of
Goetschius v Board of Educ. of Greenburg Eleven Union Free School
Dist., 281 AD2d 416, 417).




Entered:   January 31, 2012                    Frances E. Cafarell
                                               Clerk of the Court
