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FOIL-AO-17517

 

                                                                                                February 5, 2009

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 and hope that you will apologize for the delay in response.  You have raised questions concerning the City of Yonkers Charter Revision Commission in relation to its meetings and votes.

            In this regard, as you may recall, an opinion was prepared at your request in 1994 advising that a city’s charter revision commission created in accordance with §36 of the Municipal Home Rule Law constitutes a public body required to comply with the Open Meetings Law.

            With respect to your questions, you asked first whether there is a distinction between “resolutions” and “interim resolutions.”  I am unfamiliar with the latter and would conjecture that it is a term that has been used based on custom or internal rules.  There is no reference to “interim resolutions” in any statute with which I am familiar.

            Next, a valid meeting may be held and action taken only when a quorum of a public body has convened.  A quorum, according to §41 of the General Construction Law, which is entitled “Quorum and majority”, is a majority of the total membership of a public body.  That statute also provides that “not less than a majority of the whole number may perform and exercise [any] power, authority or duty.”  Stated differently, a public body cannot do what it is empowered or authorized to do, except by means of an affirmative vote of a majority of its total membership.

            With respect to minutes, direction concerning their content and the time within which they must be prepared and made available to the public is found in §106 of the Open Meetings Law.   That provision states that:

"1.  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.

2.  Minutes shall be taken at executive sessions of any action that is taken by formal vote which shall consist of a record or summary of the final determination of such action, and the date and vote thereon; provided, however, that such summary need not include any matter which is not required to be made public by the freedom of information law as added by article six of this chapter.

3.  Minutes of meetings of all public bodies shall be available to the public in accordance with the provisions of the freedom of information law within two weeks from the date of such meetings except that minutes taken pursuant to subdivision two hereof shall be available to the public within one week from the date of the executive session."

            Lastly, the Freedom of Information Law has included an “open vote” requirement since its enactment in 1974.  Specifically, §87(3)(a) of the Freedom of Information Law provides that:

"Each agency shall maintain:

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

            Based upon the foregoing, when a final vote is taken by an "agency" subject to the Freedom of Information Law [see §86(3)], 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, I 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."
Moreover, in an Appellate Division decision that was affirmed by the Court of Appeals, it was found that "The use of a secret ballot for voting purposes was improper."  In so holding, the Court stated that:  "When action is taken by formal vote at open or executive sessions, the Freedom of Information Law and the Open Meetings Law both require open voting and a record of the manner in which each member voted [Public Officers Law §87[3][a]; §106[1], [2]" Smithson v. Ilion Housing Authority, 130 AD 2d 965, 967 (1987); aff'd 72 NY 2d 1034 (1988)].

            There is nothing in either the Freedom of Information or Open Meetings Laws that specifies that a vote must be accomplished by means of a roll call or that a vote be announced when it is cast.  In my view, so long as a record is prepared that indicates the manner in which each member cast his or vote, an entity would be acting in compliance with the open vote requirements imposed by those statutes.  I note that the decision cited above referred to “open voting” in the context of both open and executive sessions.  Since the Open Meetings Law permits public bodies to vote in proper circumstances during an executive session [see §§105(1) and 106(2) and (3)], it is clear in my view that roll call voting in public is not required.

            Although the record of votes by members ordinarily is included in minutes, there is no requirement that it be included in minutes.  While such a record must be prepared and made available, the Court of Appeals, the state’s highest court, has held that such a record may be maintained separate from the minutes [Perez v. City University of New York, 5 NY3d 522, 530 (2005)].

            I hope that I have been of assistance.

                                                                                                Sincerely,

 

                                                                                                Robert J. Freeman
                                                                                                Executive Director

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cc: Charter Revision Commission