Confusion - Maybe There Was An Better Alternative!

I have read the NY Open Meeting Laws, and looked at numerous opinion letters from Robert Freeman to other towns on the matter of attorney client privilege relating to open meetings laws.

It appears the meeting of the town board and their attorney Paul Curtin was legal.  Apparently according to Freeman it was legal to have other people, like WPEG, at the meeting too. 

But  I am honestly confused a bit and hope some light can be shed on this matter.  If you look at the letter from Curtin to town supervisor Hirschey revealed last night at the town board meeting explaining all this, to me there still seems to be a point of confusion.

Here is part of that letter in Curtin's words.

"As such all the matters discussed were confidential and appropriate for the purposes of "executive" session."

What confuses me  in Curtain's letter is the "executive session" part. 

Freeman in his letters repeatedly says there are two ways for public bodies subject to  open meetings laws to hold meetings in private.  Go into executive session from a public meeting under very strict reasons of which attorney client privilege could be one, and give a general reason as to why.  And when the attorney stops giving advice, then come out of executive session and return to a public meeting...or apparently the town could just have a private meeting with the attorney and invoke attorney client privilege with no public meeting or executive session from a public meeting.  See if that is how you read this, and let me know.  Here is a letter from Freeman explaining this.

Second, as you are likely aware, the Open Meetings Law provides two vehicles under which a public body may meet in private. One is the executive session, a portion of an open meeting that may be closed to the public in accordance with §105 of the Open Meetings Law. The other arises under §108 of the Open Meetings Law, which contains three exemptions from the Law. When a discussion falls within the scope of an exemption, the provisions of the Open Meetings Law do not apply.

Of relevance to the assertion of the attorney-client privilege is §108(3), which exempts from the Open Meetings Law: "...any matter made confidential by federal or state law."

When an attorney-client relationship has been invoked, the communications made pursuant to that relationship are considered confidential under §4503 of the Civil Practice Law and Rules. Consequently, if an attorney and client establish a privileged relationship, the communications made pursuant to that relationship would in my view be confidential under state law and, therefore, exempt from the Open Meetings Law.

Here is what Freeman says in another opinion letter. Underlining emphasis is mine.

"Insofar as a public body seeks legal advice from its attorney and the attorney renders
legal advice, I believe that the attorney-client privilege may validly be asserted and that
communications made within the scope of the privilege would be outside the coverage of the Open Meetings Law.

Therefore, even though there may be no basis for conducting an  executive session pursuant to §105 of the Open Meetings Law, a private discussion might validly be held based on the proper assertion of the attorney-client privilege pursuant to §108, and legal advice may be requested even though litigation is not an issue. In that case, while the litigation exception for entry into executive session would not apply, there may be a proper assertion of the attorney-client privilege."

OK here is the confusion as I see it.  In the quote above from Curtin's letter he says the meeting was ..."appropriate for the purposes of "executive session."

But executive sessions as I understand it and have observed with this board and other public bodies,  takes place from inside a public meeting already underway.

So if Curtin and this board are talking "executive session" as the letter seems to imply, where was the public meeting, and the announcement of it, where they went into executive session?   As far as I can tell there was no public meeting to start with...so why is Curtain referring to an executive session and  the meeting being appropriate for the purposes of executive session?

It seems from the board's and Curtin's actions  that the board wanted to meet with him, and invoke attorney client privilege with no public meeting or executive session, and that would be perfectly legal according to Freeman.  Freeman seems to separate that from executive session.

So again why is Curtin referring to "executive session".  Help me out here.  In all the reporting and comments did I miss something?   Was there an officially  announced public meeting from which the board then went into executive session?   Did Pearson burst into an executive session that was in an already existing public meeting?  Was there an announcement, are there minutes of the general meeting and a reference to going to executive session?

The report in the paper didn't sound like there was a public meeting.  If there was you would think it would be at Rec Park not the town offices, and Pearson would have definitely been there.

And here is the other thing.  If the board can meet privately either way, with executive session from a public meeting as one alternative where they could meet with their attorney legally behind closed doors, why not be as open as possible and have  an official announced public board meeting to discuss the Art. X judges visit and the issues, and then legally go into executive session and give a general reason why as possible litigation involving the Art X application?  I'm mean gee whiz after all this hoopla that is what Curtin's letter says now in public anyhow.  Why not explain that up front?

Now think about it.  It might have been a little more process for the town, but it would have removed any justification for Pearson to create such a fiasco in the first place.  Hirschey or the attorney could have explained it right up front.  And if there were questions about WPEG being in the meeting, that could have been explained too.

Seems to me if nothing else based on what I posted above this private meeting was bad judgment in a town so volatile, and they could have avoided a lot of problems, and still had a perfectly legal meeting just like they wanted by a better slightly more open process and an upfront explanation as to why.  Pearson and pro wind might not have liked it but under those circumstance explained up front and legal they are defused and out of luck.

Judgment!!!!!  Just like the solar zoning fiasco and a lack of it!!!!