"Pending Litigation" as Excuse for Executive Session

New York State's Open Meeting Law §105(1)(d) permits a public body to enter into an executive session to discuss "proposed, pending or current litigation". Based on judicial decisions, the scope of the so-called pending litigation exception is narrow. As stated judicially:

"The purpose of paragraph is §105(1)(d), " is to enable a public body to discuss pending litigation privately, without baring its strategy to its adversary through mandatory public meetings" (Matter of Concerned Citizens to Review Jefferson Val. Mall v. Town bd.. Of Town of Yorketown, 83 AD d. 612, 613,441 N.S. d. 292). The belief of the town's attorney that [a situation] 'would almost certainly lead to litigation' does not justify the conducting of this public business in an executive session. To accept this argument would be to accept the view that any public body could bar the public from its meetings simply by expressing the fear that litigation may result from actions taken therein. Such a view would be contrary to both the letter and the spirit of the exception" [Weatherwise v. Town of Stony Point, 97 AD d. 840, 841 (1983)].

Based upon the foregoing, the exception which allows public bodies to enter into executive session to discuss "pending litigation" is intended to permit a public body to discuss behind closed doors specific litigation strategy related to a specific action which has been filed, rather than discussing issues that might eventually result in litigation. Again, §105(1)(d) would not permit a public body to conduct an executive session due to a possibility or fear of litigation. As the court in Weatherwise suggested, if the possibility or fear of litigation served as a valid basis for entry into executive session, there could be little that remains to be discussed in public, and the intent of the Open Meetings Law would be thwarted.