NY.gov Portal State Agency Listing

 

August 27, 1998

 

Mr. Peter Henner
Attorney and Counselor At Law
P.O. Box 326
Clarksville, NY 12041-0326

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. Henner:

I have received your letter of August 24 in which you requested an advisory opinion
relating to the Open Meetings Law.

The issue involves the validity of action recently taken by the Montgomery County
Private Industry Council ("PIC"). You contend that the PIC is a public body required to
comply with both the Open Meetings Law and §41 of the General Construction Law. You
indicated that the PIC has twenty-seven members, and that a resolution was passed by a vote
of ten to three with one abstention. You have asked whether the PIC "has the authority to
act with less than the affirmative votes of 14 of its 27 members."

Based on materials sent to me by the New York State Department of Labor, PICs are
created pursuant to the provisions of the federal Job Training Partnership Act. Section 101
of the Act provides that the governor of a state is required to designate "service delivery
areas" which are "comprised of the State or one or more units of general local government"
and "will promote effective delivery of job training services."

Section 102, entitled "Establishment of Private Industry Council", states that there
must be a private industry council for each service delivery area. That provision describes the
composition of a private industry council and indicates that the members are selected by the
"chief elected officials" of "units of general local government in the service delivery area" or,
in some instances, by the Governor. If the appointments to a private industry council are
consistent with the requirements of §102, "the Governor shall certify a private industry
council..."

Section 103 pertains to the functions of private industry councils and states in relevant
part that:

"It shall be responsibility of the private industry council to
provide policy guidance for, and exercise oversight with
respect to, activities under the job training plan for its service
delivery area in partnership with the unit or units of general
local government within its service delivery area."

Based on a review of the pertinent provisions, there appears to be no specific
requirement concerning the number of persons serving on a private industry council, or the
number of members constituting a quorum or needed to vote to take action.

From my perspective, it is questionable whether the Open Meetings Law is applicable.
That statute, as you are aware, pertains to meetings of public bodies. Section 102(2) of the
Open Meetings Law 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."

Under the language quoted above, it would appear that a private industry council constitutes
a "public body", for it is an entity consisting of at least two members, and it conducts public
business and performs a governmental function for the state or for one or more municipalities.
Due to the means by which the members are designated, in each instance by a government
official, it also appears that a quorum would be required pursuant to §41 of the General
Construction Law.

I point out, however, that in a case dealing with the status of a Laboratory Animals
Use Committee (LAUC) created by federal law, the Court of Appeals held that "the powers
of the LAUC derive solely from Federal law...and for that reason alone...the Committee is not
a public body as defined by the Open Meetings Law" [American Society for the Prevention
of Cruelty to Animals v. Board of Trustees of the State University of New York, 79 NY2d
927, 929 (1992)]. Nevertheless, in American Society, there was no general governmental
control, nor was a function being carried out for units of state or local government. LUACs
are required to be designated by any entity in which animals are used in laboratory testing,
including private facilities and hospitals, for example. The suit was brought because a
particular LUAC functioned within a governmental entity, a branch of the State University.
In contrast, as indicated earlier, the members of a private industry council are chosen by
officials of state or local government and they charged with developing public policy. While
the nature of a judicial response to the issue of coverage of private industry councils by the
Open Meetings Law is conjectural, due to the relationship between such councils and local
governments, as well as the nature of their functions, it is likely in my view that a private
industry council would be found to constitute a public body subject to the Open Meetings
Law.

While §41 of the General Construction Law, which is entitled "Quorum and majority",
typically pertains to entities that are clearly governmental, it includes within its coverage
instances in which "three or more persons are charged with any public duty to be performed
or exercised by them jointly or as a board or similar body". Based upon that language, it
appears that the requirements imposed by that statute would apply to a private industry
council whether or not it is a public body. Specifically, the cited provision states that:

"Whenever three of more public officers are given any power
or authority, or three or more persons are charged with any
public duty to be performed or exercised by them jointly or as
a board or similar body, a majority of the whole number of
such persons or officers, at a meeting duly held at a time fixed
by law, or by any by-law duly adopted by such board of body,
or at any duly adjourned meeting of such meeting, or at any
meeting duly held upon reasonable notice to all of them, shall
constitute a quorum and not less than a majority of the whole
number may perform and exercise such power, authority or
dy. For the purpose of this provision the words 'whole
number' shall be construed to mean the total number which the
board, commission, body or other group of persons or officers
would have were there no vacancies and were one of the
persons or officers disqualified from acting."

Based upon the foregoing, a quorum is a majority of the total membership of an entity
consisting of three or more public officers or three or more persons charged with a public
duty to be exercised collectively, as a body, notwithstanding absences or vacancies, for
example. Further, in order to carry a motion or take action, there must be an affirmative vote
of a majority of the total membership of such an entity. Therefore, if an entity consists of
twenty-seven members, fourteen affirmative votes would be needed to approve a motion.

In construing §41 of the General Construction Law, it has consistently been found that
action may be taken only by means of an affirmative vote of the majority of the total
membership of an entity [see e.g., Rockland Woods, Inc. v. Suffern, 40 AD 2d 385 (1973);
Walt Whitman Game Room, Inc. v. Zoning Board of Appeals, 54 AD 2d 764 (1975);
Guiliano v. Entress, 4 Misc. 2d 546 (1957); and Downing v. Gaynor, 47 Misc. 2d 535 (1965);
also Ops Atty Gen 88-87 (informal)].

In the context of the situation described, assuming that it is subject to §41 of the
General Construction Law, since the PIC consists of twenty-seven members, an affirmative
vote of less than fourteen might be characterized as "nonaction."
I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Montgomery County Private Industry Council