To the Editor:

We are writing to clarify the article in the March 22 Enterprise, “Board divided over town appointments,” and the editorial, “Sunshine laws apply to emails, too,” published last week, March 29.

The editorial seems to imply that the Open Meetings Law was violated by the Berne Town Board when they shared opinions about a personnel matter.  But, that position is counter to judgements that Robert Freeman, Executive Director of the Department of State’s Committee on Open Government has made in a number of publicly available advisory opinions.

Mr. Freeman explicitly states that board members may share information and opinions without violating the Open Meetings Law:

“In my experience, there are numerous situations in which detailed communications have been prepared and disseminated to or among members of public bodies in which the Open Meetings Law is not implicated. Often those communications serve as a means of acquiring or exchanging information, knowledge, expertise or different points of view, all of which enable members of public bodies to carry out their duties more effectively on behalf of the public. If a member of a board having a particular interest or expertise offers information in writing to other members, by means of intra-agency memorandum or perhaps via email, I do not believe that it could be concluded that such action, by itself, would constitute a meeting, even if it leads to responses by other members.”

In an another advisory letter dated March 22, 2018, Mr. Freeman explains further:

“If you send an email message to the four other board members, now, one might see it right away because that person is sitting in front of the screen A second will see it tonight when he or she gets home. A third won’t open it until tomorrow. And the fourth ignores it.  The point is that there is no instantaneous or contemporaneous exchange on the part of a majority of the board. Because that is so, I do not believe that the Open Meetings Law would be implicated. That situation is analogous to the old-fashioned interoffice memo. Each piece of mail would be deposited in the mailbox at the same time, but the recipients would receive and open the mail at different times. I doubt that anyone would content (sic) that that would run afoul of the Open Meetings Law.”

When Mr. Palow, a Berne Town Board member, chose to give The Enterprise emails regarding an appointment of an individual to a committee position, it breached the standard practice of professional responsibility and confidentiality. It should be understood that those standards should, and have always, guided the actions of town board members.

We work to serve the public, trying to achieve what is best for our community and its residents, and the public relies on our adherence to those standards. Each board member must also trust their fellow members to apply those same principles, and must trust their concerns and opinions will be met with respect.

When considering someone for a position in the town — be it an employee or a committee member — the board treats those applicants, and the assessment of their qualifications, with confidentiality. It does not publicly share information gathered from them, or the rationale behind decisions regarding their application. Professional responsibility dictates that we follow that rule, and it has been the standard practice of our past town boards. Those applying for positions trust we will keep their information confidential.

It is essential that we share our concerns and opinions about any potential appointment with other board members. In the instance described in The Enterprise, we wanted other board members to understand we had valid reasons for those opinions.

It is standard operating procedure for employers to view an applicant’s Facebook page as part of the vetting process. The profile in question was made public by the owner’s choice of settings, easily viewable by anyone else with a Facebook account.

Our opinions, however, were made with the confidentiality we reserve for any personnel issue. We expected those opinions would be treated with the privacy they deserve, and as anyone applying for a position, in any organization, would expect.

Had the emails been obtained through the Freedom of Information Law, as the editorial suggests, all opinions would have been legally redacted. Thus, they would not have been published, saving the applicant any embarrassment their subsequent publication might cause.

We are disturbed that the submission to The Enterprise, and subsequent publishing of these confidentially shared opinions, defied the principles of professional conduct and the trust board members need to work successfully together. We are disheartened that one town board member chose to disregard those principles.

Dawn G. Jordan

Karen Schimmer

Berne Town Councilmembers