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FOIL-AO-16083

July 26, 2006

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, unless otherwise indicated.

Dear

I have received your letter and the documentation accompanying it. You serve as Clerk/Treasurer for the Village of Webster, and you learned that the Mayor and a trustee had removed certain personnel files without the knowledge or consent of yourself or the Board of Trustees. You requested their return, and the Mayor did so, but upon your inspection, you determined that certain records pertaining to you were missing. You have learned that the Mayor and the trustee have spoken to one of your previous employers "without your knowledge or consent", and you are seeking the information given to the Mayor and trustee by your previous employer and which was discussed during an executive session. Although the Board assured you that an attorney retained by the Village would provide that information to you, that had not occurred as of the time we spoke on July 20.

That attorney, according to your letter, concluded that the Mayor, in your words, "had every right to take our personnel files with original documents home at anytime without board approval." You have asked whether that is so and raised a variety of related questions. Insofar as your questions relate to access to records, I offer the following comments.

First and perhaps most importantly, I do not believe that a mayor of a village owns village records or generally has legal custody or control over village records. Section 4-402 of the Village Law states in part that the clerk of each village "shall....have custody of the corporate seal, books, records, and papers of the village and all the official reports and communications of the board of trustees..." Consistent with that provision in the Village Law is §57.19 of the Arts and Cultural Affairs Law, entitled "Local government records management program." Section 57.19 states in relevant part that:

"The governing body, and the chief executive official where one exists, shall promote and support a program for the orderly and efficient management of records, including the identification and appropriate administration of records with enduring value for historical or other research. Each local government shall have one officer who is designated as records management officer. This officer shall coordinate the development of and oversee such program and shall coordinate legal disposition, including destruction of obsolete records. In Villages, the village clerk shall be the records management officer...."

A mayor is one among five members of a village board of trustees, and although a mayor has certain powers and duties, in many instances he or she does not have the authority to act unilaterally. As stated in §4-412(2) of the Village Law, "A majority of the board shall constitute a quorum for the transaction of business..." Section 41 of the General Construction Law entitled "Quorum and majority" has long provided that a public body, such as a village board of trustees, may do what it is empowered to do only by means of an affirmative vote of a majority of its total membership. Consistent with those statutes is §4-400 of the Village Law entitled "Mayor", which in subdivision (1) states that a mayor "may have a vote upon all matters and questions coming before the board and he shall vote in case of a tie, however on all matters and questions, he shall vote only in his capacity as mayor of the village and his vote shall be considered as one vote..."

Again, unless otherwise authorized by law, I do not believe that a mayor may act or take action unilaterally, without the consent or direction of a board of trustees. In the context of your question, I do not believe that the Mayor had the right to remove records from Village offices on his own and without proper authorization and take them to his home. That conclusion was confirmed in Bracco v. Mastroeni (Supreme Court, Rockland County, November 23 1994) in which the court determined that a mayor "is entitled to inspect the books, records and papers at the Village Clerk’s office during office hours as prescribed by the board of trustees", but that §4-402 of the Village Law "does not, however, permit the Mayor to remove original records from the custody of the Clerk, who is charged with holding Village records subject to the direction and control of the board of trustees."

Second, related is the implementation of the Freedom of Information Law. Under §89 (1) of that statute, the Committee on Open Government is required to promulgate regulations concerning the procedural implementation of that statute (21 NYCRR Part 1401). In turn, §87 (1) requires the governing body of a public corporation to adopt rules and regulations consistent those promulgated by the Committee and with the Freedom of Information Law. Further, §1401.2 of the regulations provides in relevant part that:

"(a) The governing body of a public corporation and the head of an executive agency or governing body of other agencies shall be responsible for insuring compliance with the regulations herein, and shall designate one or more persons as records access officer by name or by specific job title and business address, who shall have the duty of coordinating agency response to public requests for access officers shall not be construed to prohibit officials who have in the past been authorized to make records or information available to the public form continuing from doing so."

As such, the Village Board of Trustees has the duty to promulgate rules and ensure compliance. Section 1401.2 (b) of the regulations describes the duties of a records access officer and states in part that:

"The records access officer is responsible for assuring that agency personnel...

(4) Upon locating the records, take one of the following actions:
(i) make records promptly available for inspection; or
(ii) deny access to the records in whole or in part and explain in writing the reasons therefor.
(5) Upon request for copies of records:
(i) make a copy available upon payment or offer to pay established fees, if any; or
(ii) permit the requester to copy those records..."

Based on the foregoing, the records access officer must "coordinate" an agency's response to requests. As part of that coordination, I believe that other village officials and employees are required to cooperate with the records access officer in an effort to enable him or her to carry out his or her official duties. Because village clerks are both the custodians of village records under §4-402 of the Village Law and the records management officer, they are in most circumstances also designated as records access officer. Assuming that you have been designated as records access officer, absent the ability to gain access to or review records requested under the Freedom of Information Law, you would be effectively precluded from carrying out your duties or "coordinating" the Village’s response to requests.

In sum, I believe that you, as Clerk, have overall custody of Village records, and that the Mayor lacks that power or authority.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Board of Trustees