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FOIL-AO-15855

March 15, 2006

E-MAIL

TO:

FROM: Camille S. Jobin-Davis, Assistant Director

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

Dear

We are in receipt of your request for an advisory opinion concerning "secret balloting" and quorum requirements, specifically the following two questions: (1) whether the decision in Perez v. City University of New York [5 NY3d 522, 806 NYS2d 460 (2005)] is "a departure" from Smithson v. Ilion Housing Authority, [130 AD2d 965, 516 NYS2d 564 (4th Dept, 1987) aff’d, 72 NY2d 1034, 534 NYS2d 930 (1988)] with respect to secret balloting, and (2) whether bylaws, which could define a "quorum" of a public body at the City University of New York as a majority of the entire membership, are in keeping with the Open Meetings Law.

With regard to your question about the recent decision by the Court of Appeals in Perez, supra, by way of background, since the Freedom of Information Law was enacted in 1974, it has imposed what some have characterized as an "open vote" requirement. Although the Freedom of Information Law generally pertains to existing records and ordinarily does not require that a record be created or prepared [see §89(3)], an exception to that rule involves voting by agency members. Specifically, §87(3) of the Freedom of Information Law has long required that:

"Each agency shall maintain:

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

Stated differently, when a final vote is taken by members of an agency, a record must be prepared that indicates the manner in which each member who voted cast his or her vote.

In terms of the rationale of §87(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 may have voted individually concerning particular issues. Although the Open Meetings Law does not refer specifically to the manner in which votes are taken or recorded, we believe that the thrust of §87(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."

In Perez, the primary issue was whether the Hostos Community College Senate and its Executive Committee were subject to the Open Meetings Law. Further, the Court considered whether secret ballots by the Collage Senate were prohibited by either the Open Meetings Law or the Freedom of Information Law. Based on the Court’s finding that the College Senate is subject to both laws, the Court held that although there was no requirement pursuant to the Open Meetings Law to record an accounting of each participant’s ballot, it would be impossible for the College Senate to maintain the requisite record of votes pursuant to the Freedom of Information Law, were the final vote of each member anonymous or secret. "Consequently," the Court ruled, "voting by the College Senate and the Executive Committee may not be conducted by secret ballot." Perez, 5 NY3d at 530, 806 NYS2d at 464.

In 1988 the Court affirmed an Appellate Division decision in which it was found that "[t]he use of a secret ballot for voting purposes was improper", and that the Freedom of Information Law requires "open voting and a record of the manner in which each member voted" [Smithson v. Ilion Housing Authority, 130 AD 2d 965, 967, 516 NYS 2d 564, 566 ( 4th Dept 1987), aff'd 72 NY 2d 1034, 534 NYS 2d 930 (1988)].

Based on Smithson and now Perez, it is clear that in order for an agency to comply with the Freedom of Information Law, a record must be prepared and maintained indicating how each member cast his or her vote. Disclosure of the record of votes represents the only means by which the public could know how its representatives asserted their authority. Ordinarily, a record of votes of the members will appear in minutes required to be prepared pursuant to §106 of the Open Meetings Law, and in our opinion, so long as minutes indicate how each member cast his or her vote, the requirements of the Freedom of Information Law would be satisfied.

In addition to the above-stated declaration set forth in §100 of the Open Meetings Law, §106 specifically requires the following:

Minutes shall be taken at all open meetings of a public body which shall consist of a record or summary of all motions, proposals, resolutions and any other matter formally voted upon and the vote thereon.

Accordingly, while there is no provision in the Open Meetings Law which requires the keeping of a record of the vote by member, it is our opinion that the purpose and intent of the law are clear, and to the extent that a summary of a vote taken could include a record of each member’s vote, we recommend that it should. The requirement, however, that a record be prepared indicating the manner in which the members voted is imposed by the Freedom of Information Law.

Lastly, as a general matter, we do not believe that the Open Meetings Law applies unless a quorum is present. Even when a meeting is scheduled and reasonable notice is given to all the members in a manner consistent with the requirements of §41 of the General Construction Law, but less than a majority attends, the gathering would not constitute a "meeting" and the public would have no right to attend. Section 41 of the General Construction Law, entitled "Quorum and majority", states in relevant part that:

"Whenever three or 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, gathered together in the presence of each other or through the use of videoconferencing, 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 duty. 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 none of the persons or officers disqualified from acting."

The question which you pose is whether public bodies at the university "will be subject to a quorum (and voting) requirement of a majority of the entire membership, regardless of particular provisions set out in the various bylaws", and further, whether a college council or faculty senate with 200 members and/or a small student senate with 20 members would be public bodies.

In response, please note that it is not the size of the public body which dictates whether it would be subject to those laws. In this regard, as you may be aware, the Open Meetings Law is applicable to public bodies, and §102(2) 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."

From our perspective, the university bylaws imposing a quorum requirement on meetings of public bodies which by their nature are subject to the Open Meetings Law, would have no impact on the application of the Open Meetings Law. Again, based on the statutory definition of "public body", such entities are subject to quorum requirements.

On behalf of the Committee on Open Government, we hope this is helpful to you.


CSJ:tt