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August 16, 2000

FOIL-AO-12284

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

I have received your letter of July 17 in which you questioned the status of personnel
and budget committees created pursuant to CUNY bylaws under the Freedom of Information
and Open Meetings Laws. You also referred to a provision in the bylaws requiring that the
committees at issue vote by means of secret ballot.

From my perspective, the committees are subject to both statutes. In this regard, I
offer the following comments.

First, by way of background, Section 8.9 of the bylaws adopted by the CUNY Board
of Trustees states in subdivision a. that: "There shall be in each college....a committee on
faculty personnel and budget or equivalent committee. The chairperson of this committee
shall be the president. The members of the committee shall be a dean designated by the
president and the department chairman." Subdivision b. states that:

"This committee shall receive from the several departments all
recommendations for appointments to the instructional staff,
reappointments thereto, with or without tenure, and promotions
therein, together with compensation; it shall recommend action
thereon to the president. If the recommendations are adverse to
the person concerned and if he/she considers himself/herself
aggrieved within the terms and conditions of an existing
collective negotiation agreement, he/she may avail
himself/herself of the grievance procedure set forth in said
agreement. The committee may also recommend to the
president special salary increments. The president shall
consider such recommendations in making his/her
recommendations on such matters to the board."

Second, as you are aware, the Open Meetings Law is applicable to meetings of public
bodies, and §102(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)].

In the decisions cited above, each of the entities 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 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).

Again, subdivision b. of Section 8.9 of the bylaws indicates that "The president shall
consider the recommendations of a personnel and budget committee in making his/her
recommendations...to the board." That being so, I believe that the committees at issue carry
out necessary functions in the decision making process, perform a governmental function
and, therefore, are public bodies subject to the Open Meetings Law.

In my opinion, the same conclusion can be reached by viewing the definition of
"public body" in terms of its components. A personnel and budget committee is an entity
consisting of at least two members; it is required in my view to conduct its business subject
to quorum requirements (see General Construction Law, §41); and, based upon the preceding
commentary, it conducts public business and performs a governmental function for a public
corporation, i.e., the City of New York.

Next, the Freedom of Information Law is applicable to agencies, and §86(3) of that
statute defines the term "agency" to include:

"any state or municipal department, board, bureau, division,
commission, committee, public authority, public corporation,
council, office or 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."

I believe that the entities in question may be characterized as "municipal...committees" or as
governmental entities performing governmental functions for a municipality.

Lastly, Section 8.12 of the bylaws states in part that "The action of the committee
shall be by secret ballot." In my view, insofar as a provision of a bylaw or similar enactment
is inconsistent with the requirements of a statute, it is of no effect. In this instance, §87(3)(a)
of the Freedom of Information Law requires that "Each agency shall maintain...a record
setting forth the final vote of each member in every agency proceeding in which the member
votes." In a case that you litigated, which also involved an entity functioning within CUNY,
it was held that "Entities covered by the OML or the FOIL may not take action by secret
ballot" Wallace v. The City University of New York, Supreme Court, New York County,
NYLJ, July 7, 2000).

In sum, it is my opinion that the personnel and budget committees created pursuant to
CUNY bylaws are required to comply with both the Freedom of Information and Open
Meetings Laws. This is not to suggest, however, that meetings of those committees must be
conducted open to the public in their entirety or that records generated by them must be
disclosed in their entirety. I would conjecture that much of the deliberative process of the
committees could be conducted in executive session pursuant §105(1)(f) of the Open
Meetings Law, and that their recommendations could likely be withheld in great measure
under §87(2)(g) of the Freedom of Information Law.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Roy Moskowitz
Dave Fields