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May 14, 1998

Mr. Ian Alterman
317 West 83rd Street
New York, NY 10024

The staff of the Committee on Open Government is authorized to issue advisory opinions.
The ensuing staff advisory opinion is based solely upon the information presented in your
correspondence.

Dear Mr. Alterman:

As you are aware, I have received your letter of April 27 in which you sought an
"updated opinion" concerning the status of community boards under the Open Meetings
Law and the ability of members of those boards to elect their officers by secret ballot.
You have contended, in brief, that community boards are not public bodies because their
functions are advisory and that the creation of a record of votes of the members conflicts
with "logic, common sense, history, practice and, ultimately, each person's right to privacy
with respect to the election process."

Having reviewed earlier opinions on the subjects of your concern, I respectfully
disagree with your contentions. In this regard, I offer the following comments.

First, the Open Meetings Law is applicable to meetings of public bodies, and º102(2) of
that statute defines the phrase "public body" to mean:

"...any entity for which a quorum is required in order to conduct
public business and which consists of two or more members,
performing a governmental function for the state or for an agency or
department thereof, or for a public corporation as defined in section
sixty-six of the general construction law, or committee or
subcommittee or other similar body of such public body."

Judicial decisions indicate generally that advisory bodies having no power to take final
action, other than committees consisting solely of members of public bodies, fall outside
the scope of the Open Meetings Law. As stated in those decisions: "it has long been held
that the mere giving of advice, even about governmental matters is not itself a
governmental function" [Goodson-Todman Enterprises, Ltd. v. Town Board of Milan,
542 NYS 2d 373, 374, 151 AD 2d 642 (1989); Poughkeepsie Newspapers v. Mayor's
Intergovernmental Task Force, 145 AD 2d 65, 67 (1989); see also New York Public
Interest Research Group v. Governor's Advisory Commission, 507 NYS 2d 798, aff'd with
no opinion, 135 AD 2d 1149, motion for leave to appeal denied, 71 NY 2d 964 (1988)].

Each of the entities at issue in the decisions cited above were ad hoc in that they were
charged with a narrow task to be performed within a limited duration; following the
performance of the task, the entities would cease to exist. In contrast, community boards
are creations of law, specifically Chapter 70 the New York City Charter, ºº 2800 and
2801; their existence is ongoing, and only an amendment to the City Charter would
terminate their authority to carry out their duties.

In those decisions, none of the entities was designated by law to carry out a particular
duty and all had purely advisory functions. More analogous to the matter in my view is
the decision rendered in MFY Legal Services v. Toia [402 NYS 2d 510 (1977)]. That
case involved an advisory body created by statute to advise the Commissioner of the State
Department of Social Services. In MFY, it was found that "[a]lthough the duty of the
committee is only to give advice which may be disregarded by the Commissioner, the
Commissioner may, in some instances, be prohibited from acting before he receives that
advice" (id. 511) and that, "[t]herefore, the giving of advice by the Committee either on
their own volition or at the request of the Commissioner is a necessary governmental
function for the proper actions of the Social Services Department" (id. 511-512).

As I understand the provisions of the City Charter, community boards perform a
variety of what might be characterized as advisory functions. However, in at least one
area of responsibility, they perform a legally necessary step in the decision making process.
Paragraph (17) of º2800(d) states that each community board shall:

"Exercise the initial review of applications and proposals of public
agencies and private entities for the use, development or improvement
of land located in the community district, including the conduct of a
public hearing and the preparation and submission to the city planning
commission of a written recommendation..."

Based on the foregoing, before the City Planning Commission can act with respect to land
use, a community board must conduct a public hearing and submit a written
recommendation to the Commission. Although a community board does not render a final
and binding decision, it performs an obligatory function in the process leading to a
determination.

In addition, under paragraphs (f) and (g) of º2800, a community board has the power
to hire a district manager and others. As such, it enjoys the authority to make certain
decisions in order to carry out its duties.

In sum, because community boards perform necessary functions pursuant to the City
Charter, I continue to believe and advise that they constitute public bodies required to
comply with the Open Meetings Law.

Second, I do not believe that voting by members of community boards in the
performance of their official duties can be equated with citizens casting votes in a general
election. In the former situation, the members are essentially representatives of the public
appointed by a borough president to carry out governmental duties in the public interest.
In the latter, voters can make choices, as individuals, not as representatives of others, as a
means of expressing their views.

In terms of the law, º87(3)(a) of the Freedom of Information Law provides that:

"Each agency shall maintain:

(a) a record of the final vote of each member in every agency
proceeding in which the member votes..."

Based upon the foregoing, when a final vote is taken by an "agency", which is defined to
include a state or municipal board [see º86(3)], such as a community board, a record must
be prepared that indicates the manner in which each member who voted cast his or her
final vote. Ordinarily, records of votes will appear in minutes.

In terms of the rationale of º87(3)(a), it appears that the State Legislature in precluding
secret ballot voting sought to ensure that the public has the right to know how its
representatives have voted with respect to particular matters. Although the Open
Meetings Law does not refer specifically to the manner in which votes are taken or
recorded, I believe that the thrust of º87(3)(a) of the Freedom of Information Law is
consistent with the Legislative Declaration that appears at the beginning of the
Open Meetings Law and states that:

"it is essential to the maintenance of a democratic society that the
public business be performed in an open and public manner and that
the citizens of this state be fully aware of and able to observe the
performance of public officials and attend and listen to the
deliberations and decisions that go into the making of public policy.
The people must be able to remain informed if they are to retain
control over those who are their public servants."

Moreover, in an Appellate Division decision that was affirmed by the Court of Appeals, it
was found that "The use of a secret ballot for voting purposes was improper." In so
holding, the Court stated that: "When action is taken by formal vote at open or executive
sessions, the Freedom of Information Law and the Open Meetings Law both require open
voting and a record of the manner in which each member voted [Public Officers Law
º87[3][a]; º106[1], [2]" Smithson v. Ilion Housing Authority, 130 AD 2d 965, 967 (1987);
aff'd 72 NY 2d 1034 (1988)].

If, in the context of your remarks, a vote to elect an officer does not result in a majority
for any candidate, and the vote is not "final", I do not believe that the votes of each
member must be recorded. Under º87(3)(a), the members' votes must be memorialized
only in the case of a "final" vote.

If you would like to discuss the matter, please feel free to contact me. I hope that I
have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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