Last week, the Seneca County Board of Supervisors learned an important lesson: Governing on assumptions is risky.
Typically, the final meeting of a calendar year is straightforward. Pay the bills, take care of any outstanding items, set some minor things up for next year — and move forward. That could have been how Thursday’s meeting played out as the board met for the last time of 2019.
Instead, it was chaotic, and as Kristin O’Neill, assistant director of the state Committee on Open Government, pointed out not up to legal standard. The supervisors elected to enter an executive session even though three supervisors voted against it. Normally, three votes against executive session would not be enough to kill a motion, but it did this time because of four other absences.
Even though the board had a quorum to hold the meeting — as O’Neill pointed out in a lengthy ruling on the matter — a majority of the full membership is required to pass any motion, including one to enter executive session.
Chairman Bob Shipley, R-Waterloo, argued that he was working off a ruling provided by the assistant county attorney. “The motion passed in the opinion of the Chair,” he said, further noting that nothing about the meeting was illegal, and calling it such — as other supervisors did immediately after — was little more than an exaggeration.
While there isn’t any legal action to be taken — aside from an Article 78 had a resolution been passed without the necessary numbers — questions have loomed about local government and a frequent willingness to enter executive session. I’ve covered governing bodies in Seneca, Ontario, Yates, Cayuga, and Wayne counties and at some point, all have entered into executive session for what feels like “incomplete” reasons. Whether due to an inability to properly vocalize why they’re entering executive session or an intentional means to mislead the general public, it feels inexcusable.
Setting that aside, the larger problem for this and every other board seems clear. For the last five years, I’ve listened to members of governing bodies across the region work off the assumption that a simple majority of those present is all that’s needed to govern. Now we have a ruling, issued clearly by the state’s agency on government transparency and accountability, that it is not the case.
“The Board of Supervisors may not exercise its powers absent the approval of a majority of the whole number of the board,” O’Neill said in the ruling. She said the term “whole number” is defined as “the total number which the board, commission, body or other group of persons or officers would have were there no vacancies and were none of the persons or officers disqualified from acting.”
The board of supervisors has 14 members. “As such, in order to exercise its powers, any motion, proposal, etc., at least eight members of the board must be present at the meeting and at least eight members must vote to approve any action item,” she explained. “Pursuant to Section 105 of the Open Meetings Law, in order to enter into executive session, a motion must be made which must include the reason or reasons for entering into executive session. The motion must include one of the statutory reasons for entering into executive session listed in the Law and must contain sufficient details to allow all Board members and the public to know that the Board is entering into executive session for a proper purpose. The motion must be approved by a majority of the total board.”
This is important for anyone who watches government work and cares that established rules are being followed. And as I learned through a follow-up request, a vote in committee earlier this month did not reach legal requirements. At the board’s standing committee meetings at least one documented 2-1 vote occurred. Two supervisors were absent, which according to O’Neill means the item did not reach the minimum standard to be forwarded.
It was forwarded to the full board anyway.
The first action that supervisors should take in 2020 is to review every vote from the last two years to identify where legal exposure exists. Frankly, they probably should have done this already — right after O’Neill’s ruling was sent to them.
That said, the sad reality is that aside from using the press — or pursuing an Article 78 if a resolution is passed without proper majorities — little action can be taken. Other states have guidelines in place that enforce these policies, and ensure that when errors like this are made, governing bodies are held accountable.