July 14, 1999

 

Mr. William J. Kemble
Daily Freeman
675 Blue Mountain Road
Saugerties, NY 12477

Mr. Thomas Lambert
Daily Sentinel
333 W. Dominick Street
Rome, NY 13440

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 Messrs: Kemble and Lambert:

I have received your letter of June 4, as well as the materials attached to it. You have
sought an advisory opinion "on whether the Griffiss Local Development Corporation is
required to conform with the Open Meetings and Freedom of Information laws." You wrote
that the issue has arisen due to "the contention by GLDC Executive Director Steve DiMeo
and GLDC board Chairman Ralph Eannace, who is also Oneida County Executive, that the
board is not subject to the law because is a not-for-profit corporation."

By way of background, according to its Certificate of Incorporation, the Griffiss Local
Development Corporation (hereafter "GLDC"):

"...is a not-for-profit local development corporation organized
under Section 1411 of the Not-for-Profit Corporation Law
and operated exclusively for the charitable and public/quasi-
public purposes of participating in the development and
implementation of a comprehensive strategy to maintain,
strengthen and expand the uses and viability of the former
Griffiss Air Force Base..."
You indicated that the Board of the GLDC consists of fifteen members, five of whom are
appointed by the Governor, three by the Oneida County Legislature, three by the Mayor of
the City of Rome, two by the Speaker of the Assembly and two by the Senate Majority
Leader. In short, all of the members of the Board are designated by officials of state or local
government.

In this regard, while I know of no judicial decision concerning the status of a local
development corporation under the Open Meetings Law, the State's highest court has
considered the matter under the Freedom of Information Law.

The Freedom of Information Law pertains to agencies, and §86(3) of that statute
defines the term "agency" to mean:

"any state or municipal department, board, bureau, division,
commission, committee, public authority, public corporation,
council, office of other governmental entity performing a
governmental or proprietary function for the state or any one
or more municipalities thereof, except the judiciary or the state
legislature" [§86(3)].

Specific reference is found in §1411 of the Not-for-Profit Corporation Law to local
development corporations. The cited provision describes the purpose of those corporations
and states in part that:

"it is hereby found, determined and declared that in carrying
out said purposes and in exercising the powers conferred by
paragraph (b) such corporations will be performing an
essential governmental function."

Therefore, due to their status as not-for-profit corporations, it is not clear in every instance
that every local development corporation is a governmental entity; however, it is clear that
such a corporation performs a governmental function.

Relevant to your inquiry is a decision rendered by the Court of Appeals in which it
was held that a particular not-for-profit local development corporation is an "agency" required
to comply with the Freedom of Information Law [Buffalo News v. Buffalo Enterprise
Development Corporation, 84 NY 2d 488 (1994)]. In so holding, the Court found that:

"The BEDC seeks to squeeze itself out of that broad
multipurposed definition by relying principally on Federal
precedents interpreting FOIL's counterpart, the Freedom of
Information Act (5 U.S.C. §552). The BEDC principally pegs
its argument for nondisclosure on the feature that an entity
qualifies as an 'agency' only if there is substantial governmental
control over its daily operations...The Buffalo News counters
by arguing that the City of Buffalo is 'inextricably involved in
the core planning and execution of the agency's [BEDC]
program'; thus the BEDC is a 'governmental entity' performing
a governmental function of the City of Buffalo, within the
statutory definition.

"The BEDC's purpose is undeniably governmental. It was
created exclusively by and for the City of Buffalo to attract
investment and stimulate growth in Buffalo's downtown and
neighborhoods. As a city development agency, it is required
to publicly disclose its annual budget. The budget is subject
to a public hearing and is submitted with its annual audited
financial statements to the City of Buffalo for review.
Moreover, the BEDC describes itself in its financial reports
and public brochure as an 'agent' of the City of Buffalo. In
sum, the constricted construction urged by appellant BEDC
would contradict the expansive public policy dictates
underpinning FOIL. Thus, we reject appellant's arguments"
(id., 492-493).

Since the entire membership of the GLDC Board is designated by government
officials, it is clear in my view that there is "substantial governmental control" over GLDC's
operations and, based on the decision rendered by the Court of Appeals, that it is an "agency"
required to comply with the Freedom of Information Law.

If the GLDC is an agency that falls within the scope of the Freedom of Information
Law, I believe that its board would also constitute a "public body" for purposes of the Open
Meetings Law. Section 102(2) defines that phrase 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."

By breaking the definition into its components, I believe that each condition necessary to a
finding that the board of the GLDC is a "public body" may be met. It is an entity for which
a quorum is required pursuant to the provisions of the Not-for-Profit Corporation Law. It
consists of more than two members. Further, based upon the language of §1411(a) of the
Not-for-Profit Corporation Law, which was quoted in part earlier, and the degree of
governmental control exercised over the GLDC, I believe that it conducts public business and
performs a governmental function for the state and several public corporations, in this
instance, i.e., Oneida County, the Cities of Rome and Utica, and the Oneida County Industrial
Development Agency.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Hon. Ralph Eannace
Steve DiMeo