Can a New York city pass a local law making it illegal for a council member to leak what happened in an executive session?

Plain-English summary

Rome's Corporation Counsel asked whether the city could pass a local law or code of ethics provision that prohibits city council members from disclosing what was discussed in executive session. The question has political weight: executive sessions are the place where municipal bodies discuss labor negotiations, litigation strategy, real estate deals, and personnel matters. Leaks undermine those discussions; restrictions on leaks raise First Amendment concerns about elected officials' speech.

The AG said yes, municipalities have statutory authority for such a restriction, subject to constitutional limits.

Two statutory vehicles work:

General Municipal Law § 806 requires every municipality to adopt a code of ethics. Subdivision (1)(a) explicitly authorizes codes to prohibit disclosure of information. So the code of ethics route is a textually grounded basis for a non-disclosure rule.

Municipal Home Rule Law § 10 authorizes local laws on the powers, duties, and conditions of employment of officers and employees; on government property and affairs; and on public health, safety, and welfare. § 10(1)(i) and (ii)(a)(1) and (12) all support a local law restricting executive-session disclosure. So the local law route is also available.

Why does this not conflict with the Open Meetings Law or FOIL? Because both statutes already contemplate that executive-session content is exempt from public disclosure. Public Officers Law § 102(3) defines executive session as the portion of a meeting not open to the public. § 105(1) lists the substantive topics that justify executive session (public safety, law enforcement, litigation strategy, collective bargaining, personnel matters leading to appointment/discipline, exam preparation, real estate and securities transactions where publicity would affect value).

The Third Department's decision in Kline v County of Hamilton (1997) addresses the records side directly. The court held that tape recordings, transcripts, and minutes of executive-session discussions can be withheld from the public under the FOIL exemption at § 87(2)(a) (records specifically exempted by State or federal statute). The court's logic: "It makes little sense to permit governmental bodies to meet in private under clearly defined circumstances only to subsequently allow the minutes of those private meetings to be publicly accessed under FOIL."

The only thing the public can demand from executive session is a record of any formal vote (§ 106(2)), and even that summary need not include matters not required to be made public under FOIL.

So a municipal disclosure-prohibition rule fits comfortably with the statutory architecture: executive sessions are statutorily private, the records are withholdable under FOIL, and a code-of-ethics or local-law restriction on individual disclosure just enforces the same confidentiality at the individual-member level.

The AG flagged the obvious constitutional caveat: any restriction on legislator speech is subject to First Amendment review. A categorical prohibition with criminal-grade penalties for any disclosure could face challenge. A narrowly tailored ethics rule with proportionate consequences for the specific harm (disclosure of attorney-client privileged litigation strategy, leaking personnel matters) is more defensible.

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What kinds of consequences can a code of ethics impose?

Typically, ethics violations carry remedies like public censure, removal proceedings (where authorized), or referral to State enforcement. Criminal penalties are rare and constitutionally riskier. Civil sanctions tied to the specific harm are more defensible.

What about a whistleblower exception?

Whistleblower protection is a separate body of law. Public officers reporting actual criminal conduct or constitutional violations may have protection even if the matters were discussed in executive session. A municipality's non-disclosure rule should carve out genuine whistleblower disclosures.

Could a member disclose to a reporter?

If the disclosure is covered by the ethics rule and there is no constitutional defense, then no. But the First Amendment background presses against broad enforcement, particularly where the disclosure is of public-interest matters.

What if the executive session was improperly convened?

Open Meetings Law requires a majority vote in open session to enter executive session, with the motion identifying the general subject. If the entry into executive session was procedurally defective, the protection may not attach to what was discussed. That is a fact-specific challenge.

Does this rule apply to staff who attend executive sessions?

Yes, with appropriate adjustments. A municipal employee with confidentiality obligations as part of employment terms can be disciplined for unauthorized disclosure. The same § 806 and § 10 authority supports such rules.

Background and statutory framework

The Open Meetings Law (Public Officers Law Article 7) was enacted in 1976 to require public bodies to deliberate in public. Executive session is the narrow carve-out for sensitive topics. § 105(1) enumerates eight specific permitted topics. The Legislature gave public bodies a tightly limited privacy zone but did not provide a corresponding enforcement mechanism against members who leak.

FOIL (Public Officers Law Article 6) was enacted in 1974 and amended in 1977 to align with the Open Meetings Law. § 87(2)(a) exempts records "specifically exempted from disclosure by state or federal statute." Kline v County of Hamilton interpreted that to cover executive-session records under § 105.

General Municipal Law § 806 imposes the code of ethics requirement on counties, cities, towns, villages, and school districts. Subdivision (1)(a) authorizes codes to address specific subjects including disclosure of information. The provision exists alongside Article 18's hard-prohibition rules; § 806 is the broader local-discretion piece.

Municipal Home Rule Law § 10 provides the underlying local-law authority. The statute's breadth supports a wide range of municipal rules including ethics rules.

Citations

• General Municipal Law § 806 (code of ethics requirement).
• General Municipal Law § 806(1)(a) (code may prohibit disclosure of information).
• Municipal Home Rule Law § 10 (local law authority).
• Municipal Home Rule Law § 10(1)(i) (powers, duties, conditions of employment).
• Municipal Home Rule Law § 10(1)(ii)(a)(1) (government property and affairs).
• Municipal Home Rule Law § 10(1)(ii)(a)(12) (health, safety, welfare).
• Public Officers Law Article 6 (Freedom of Information Law).
• Public Officers Law Article 7 (Open Meetings Law).
• Public Officers Law § 87(2)(a) (FOIL exemption for records exempt under State or federal statute).
• Public Officers Law § 102(3) (definition of executive session).
• Public Officers Law § 105 (executive session topics).
• Public Officers Law § 105(1) (enumerated permitted subjects).
• Public Officers Law § 106(2) (minutes of formal votes during executive session).
• Kline v County of Hamilton, 235 AD2d 44 (3d Dep't 1997) (executive session records withholdable under FOIL).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2000-2_pw.pdf

Original opinion text

Opn. No. 2000-2
GENERAL MUNICIPAL LAW § 806; MUNICIPAL HOME RULE LAW § 10; PUBLIC OFFICERS
LAW, ARTS 6, 7, §§ 87(2)(a), 105(1), 106(2).
A local legislative body has statutory authority to prohibit a legislator from disclosing matters discussed
in executive session.
April 6, 2000
Gregory J. Amoroso, Esq.
Corporation Counsel
City of Rome
City Hall
Rome, NY 13440

Informal Opinion
No. 2000-2

Dear Mr. Amoroso:
You have asked whether a municipality has statutory authority, by local law or in its code of
ethics to prohibit members of the city council from disclosing matters discussed in executive session. In
a subsequent telephone conversation, you informed me that your concern is whether section 806 of the
General Municipal Law or the Municipal Home Rule Law authorizes such a prohibition. You also
question whether the prohibition is consistent with the State's Open Meetings Law and Freedom of
Information Law.
In our view, a municipality, in its code of ethics or through a local law enacted under section 10 of
the Municipal Home Rule Law, has statutory authority to prohibit members of its legislative body from
disclosing matters discussed in executive session. Although nothing in the Public Officers Law directly
prohibits such disclosure, such a prohibition is entirely consistent with the provisions of the Freedom of
Information Law and the Open Meetings Law. See Public Officers Law, Articles 6 and 7. Any such
restriction on speech would, of course, be subject to further state and federal constitutional requirements.
Section 806 of the General Municipal Law requires that the governing body of a county, city,
town, village and school district must adopt a code of ethics setting forth, for the guidance of its officers
and employees, the standards of conduct reasonably expected of them. Section 806(1)(a) states that
codes of ethics may prohibit disclosure of information.
A local government also is authorized by the Municipal Home Rule Law to enact local laws
relating to powers, duties and other terms and conditions of employment of its employees; its property,
affairs or government; and the public health, safety and welfare. Municipal Home Rule Law §10(1)(i)
and (ii)(a)(1), (12).
A restriction on disclosure of information discussed in an executive session would further the
statutory purposes of executive sessions, as set forth in the Public Officers Law. The "executive session"
of the meeting of a public body is "that portion of a meeting not open to the general public." Public
Officers Law §102(3). A local legislative body may conduct an executive session upon a majority vote
of its total membership taken in an open meeting pursuant to a motion identifying the general area or
areas of subjects to be considered. Public Officers Law §105(1). The purpose of an executive session is
to permit members of public bodies to discuss sensitive matters in private. A review of the subjects that
may be discussed in executive session clearly reveals that these are matters which, if disclosed, could
jeopardize sensitive negotiations, personal privacy, law enforcement and public safety. An executive
session may be held only for the following purposes:

1. Matters which will imperil the public safety if disclosed;
2. Any matter which may disclose the identity of a law enforcement agent or informer;
3. Information relating to current or future investigation or prosecution of a criminal offense
   which would imperil effective law enforcement if disclosed;
4. Discussions regarding proposed pending or current litigation;
5. Collective negotiations under the Taylor Law;
6. The medical, financial, credit or employment history of a particular person or corporation
   or matters leading to the appointment, employment, promotion or discipline of a person;
7. Preparation, grading or administration of examinations;
8. 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.
   A formal vote to appropriate public money may not be taken at executive session. Id.
   Disclosure of matters discussed in executive session would defeat the apparent legislative intent of
   authorizing local legislative bodies to discuss these limited matters in private. Disclosure would be
   contrary to the public welfare. A locally enacted provision prohibiting disclosure would thus further the
   statutory purpose of executive sessions and would promote the public interest. A recent decision of the
   Appellate Division is instructive in this regard. In that decision, the court held that tape recordings,
   transcripts and minutes of discussions conducted in executive session may be withheld by the legislative
   body from the public. Kline v. County of Hamilton, 235 A.D.2d 44 (3d Dep't 1997). The Appellate
   Division recognized that both the Open Meetings Law and the Freedom of Information Law guarantee
   public access to governmental deliberations and decisions. Id. at 45. The court also noted, however, that
   topics discussed in executive session are circumscribed by statute, and that under the Freedom of
   Information Law (Public Officers Law art 6) a public agency may deny access to records if they are
   specifically exempted from disclosure by state or federal statutes. Id. at 46, citing Public Officers Law §
   87(2)(a). The Appellate Division reasoned that
   [i]t makes little sense to permit governmental bodies to meet in private under clearly
   defined circumstances only to subsequently allow the minutes of those private meetings to
   be publicly accessed under FOIL. Only in the event that action is taken by a formal vote at
   an executive session do both FOIL and the Open Meetings Law require a public record of
   the manner in which each Board member voted.
   Id. The court held:
   In our view, memorialized discussions at duly convened executive sessions, which do not
   result in a formal vote, whether consisting of privileged attorney-client communications or
   otherwise (see, Public Officers Law § 105), are not the type of governmental records to
   which the public has to be given access. While the purpose of FOIL is to lift "the cloak of
   secrecy or confidentiality" (Public Officers Law § 84) from governmental records which are
   part of the governmental process, where, as here, confidentiality has been specifically
   sanctioned by Public Officers Law § 105 and 106, the records at issue fall within the
   exemption of Public Officers Law § 87(2)(a) and are to be shielded from public disclosure.
   Id.
   As the Appellate Division noted, minutes are required at executive sessions of any action that is
   taken by formal vote. Minutes consist of a record or summary of the final determination of such action
   and the date and vote taken. Public Officers Law § 106(2). A summary need not include any matter
   which is not required to be made public under the Freedom of Information Law. Id.
   Thus, it seems clear that under the Public Officers Law a governing body of a municipality may
   withhold any records of discussions properly taking place in executive session. Section 806(1)(a) of the
   General Municipal Law, authorizing municipal codes of ethics that prohibit, inter alia, disclosure of
   information, is consistent with and reinforces this fact. Accordingly, we conclude that a local legislative
   body, by local law or in its code of ethics, has statutory authority to prohibit a legislator from disclosing
   matters discussed in executive session. We emphasize that the decision to go into executive session is
   discretionary, and that any such prohibition on speech would be subject to state and federal
   constitutional requirements.
   The Attorney General renders formal opinions only to officers and departments of State
   government. This perforce is an informal and unofficial expression of the views of this office.
   Very truly yours,
   JAMES D. COLE
   Assistant Solicitor General
   In Charge of Opinions