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Application of Nett and Raby: Disclosure of Confidential Information Learned During Executive Session

ALBANY, NY 12234

Counsel and Deputy Commissioner for Legal Affairs
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From: Kathy A. Ahearn
Date: December 9, 2005
Subject: Application of Nett and Raby: Disclosure of Confidential Information Learned During Executive Session

            I write to inform you of an important decision issued by Commissioner Richard Mills which directly affects the operation of school boards across the State.

            In Application of Nett and Raby, 45 Ed Dept Rep ____, Decision No. 15,315, dated October 24, 2005, (, the Commissioner held that an individual board member cannot be permitted to undermine the effective functioning of a school board by unilaterally disclosing information learned by the member in a properly convened executive session.  In Nett, the Commissioner found that a board member who surreptitiously taped and subsequently disclosed information discussed during a properly convened board executive session violated her fiduciary duties, her oath of office and General Municipal Law §805-a(1)(b).  The Commissioner’s decision was based upon considerations of educational policy, including principles of good board governance and trustees’ fiduciary duties.

            Critical to the Nett decision was the fact that the parties agreed that the information disclosed was appropriately discussed in executive session.  The Commissioner’s decision does not prohibit the subsequent public disclosure of information that is either not properly the subject of executive session or information that was discussed during an executive session that was not properly convened.  Nor does it shield from disclosure information related to criminal activity that should be disclosed to law enforcement officials.

            The Committee on Open Government (the “Committee”) has in the past issued advisory opinions that are at odds with the Commissioner’s decision.  More recently, the Executive Director to the Committee has publicly expressed disagreement with the holding in Nett.  Accordingly, I want to remind you that, in New York State, the Commissioner of Education has the authority to interpret matters of educational policy and his decisions are binding law on public schools and school boards, unless overturned by a court of competent jurisdiction.  Thus, Nett is the law in New York State in the public school setting.  A willful failure by a school board member to comply with the Commissioner’s decision is a basis for removal of a board member or school officer under Education Law §306. 

            I strongly urge school districts and board members to read the decision and consult with your school attorneys for advice on how best to comply with the law.