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OML-AO-3402

January 31, 2002

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, unless otherwise indicated.

Dear

I have received your letter of December 31 in which you sought an advisory opinion relating to the Open Meetings Law.

According to your letter:

"Since January 1, 2000, the Cattaraugus County Legislature has consisted of twenty-one members, of which fifteen are Republicans and six are Democrats. On December 6, 2001, the Board of Elections received a change of enrollment form from one of the Democratic members of the County Legislature. He made a public announcement that he had changed his enrollment from the Democratic Party to the Republican Party."

You asked whether "the County Legislator who has changed his enrollment may attend and participate in the Republican caucuses" or whether that person "can be considered a 'guest' in the Republican caucus."

In this regard, subdivision (3) of §5-304 of the Election Law states that:

"A change of enrollment received by the board of elections not later than the twenty-fifth day before the general election shall be deposited in a sealed enrollment box, which shall not be opened until the first Tuesday following such general election. Such change shall be then removed and entered as provided in this article."

Since I am not an expert with respect to the Election Law, I contacted an attorney for the State Board of Elections, and it was confirmed that person who seeks to change his or her registration on the date specified in your letter, December 6, is not deemed to be a member of the political party in which that person desires to enroll until the Tuesday after the next general election. Stated differently, the democrat member who sought to change his enrollment will not be deemed to be a registered republican until November 12, 2002; for purposes of political party registration, he will remain a democrat until that date.

If that is so, I do not believe that the majority party members may conduct a closed political caucus to discuss public business if the legislator in question is authorized to attend. In that circumstance, based on the following commentary, I believe that such a gathering would constitute a "meeting" subject to the Open Meetings Law.

By way of background, the definition of "meeting" [see Open Meetings Law, §102(1)] has been broadly interpreted by the courts. In a landmark decision rendered in 1978, the Court of Appeals found that any gathering of a majority of a public body for the purpose of conducting public business is a "meeting" that must be conducted open to the public, whether or not there is an intent to have action and regardless of the manner in which a gathering may be characterized [see Orange County Publications v. Council of the City of Newburgh, 60 Ad 2d 409, aff'd 45 NY 2d 947 (1978)].

The decision rendered by the Court of Appeals was precipitated by contentions made by public bodies that so-called "work sessions" and similar gatherings, such as "agenda sessions," held for the purpose of discussion, but without an intent to take action, fell outside the scope of the Open Meetings Law. In discussing the issue, the Appellate Division, whose determination was unanimously affirmed by the Court of Appeals, stated that:

"We believe that the Legislature intended to include more than the mere formal act of voting or the formal execution of an official document. Every step of the decision-making process, including the decision itself, is a necessary preliminary to formal action. Formal acts have always been matters of public record and the public has always been made aware of how its officials have voted on an issue. There would be no need for this law if this was all the Legislature intended. Obviously, every thought, as well as every affirmative act of a public official as it relates to and is within the scope of one's official duties is a matter of public concern. It is the entire decision-making process that the Legislature intended to affect by the enactment of this statute" (60 AD 2d 409, 415).

The court also dealt with the characterization of meetings as "informal," stating that:

"The word 'formal' is defined merely as 'following or according with established form, custom, or rule' (Webster's Third New Int. Dictionary). We believe that it was inserted to safeguard the rights of members of a public body to engage in ordinary social transactions, but not to permit the use of this safeguard as a vehicle by which it precludes the application of the law to gatherings which have as their true purpose the discussion of the business of a public body" (id.).

Based upon the direction given by the courts, when a majority of the County Legislature is present to discuss County business, such a gathering, in my opinion, would ordinarily constitute a "meeting" subject to the Open Meetings Law, unless the meeting or a portion thereof is exempt from the Law.

Notwithstanding the foregoing, the Open Meetings Law provides two vehicles under which a public body may meet in private. One is the executive session, a portion of an open meeting that may be closed to the public in accordance with §105 of the Open Meetings Law. The other arises under §108 of the Open Meetings Law, which contains three exemptions from the Law. When a discussion falls within the scope of an exemption, the provisions of the Open Meetings Law do not apply.

Since the Open Meetings Law became effective in 1977, it has contained an exemption concerning political committees, conferences and caucuses. Again, when a matter is exempted from the Open Meetings Law, the provisions of that statute do not apply. Questions concerning the scope of the so-called "political caucus" exemption have continually arisen, and until 1985, judicial decisions indicated that the exemption pertained only to discussions of political party business. Concurrently, in those decisions, it was held that when a majority of a legislative body met to discuss public business, such a gathering constituted a meeting subject to the Open Meetings Law, even if those in attendance represented a single political party [see e.g., Sciolino v. Ryan, 81 AD 2d 475 (1981)].

Those decisions, however, were essentially reversed by the enactment of an amendment to the Open Meetings Law in 1985. Section 108(2)(a) of the Law now states that exempted from its provisions are: "deliberations of political committees, conferences and caucuses." Further, §108(2)(b) states that:

"for purposes of this section, the deliberations of political committees, conferences and caucuses means a private meeting of members of the senate or assembly of the state of New York, or the legislative body of a county, city, town or village, who are members or adherents of the same political party, without regard to (i) the subject matter under discussion, including discussions of public business, (ii) the majority or minority status of such political committees, conferences and caucuses or (iii) whether such political committees, conferences and caucuses invite staff or guests to participate in their deliberations..."

Based on the foregoing, in general, either the majority or minority party members of a legislative body may conduct closed political caucuses, either during or separate from meetings of the public body.

With respect to the situation that you described, if the republican members who serve in the Legislature constituting a majority of the Legislature's membership gather to discuss public business with a democrat member, because there would be members of two political parties, I do not believe that the gathering could be characterized as a political caucus that is exempt from the Open Meetings Law; on the contrary, that kind of gathering would in my view constitute a "meeting" subject to the Open Meetings Law. A political caucus by definition is in my opinion restricted to members or adherents of a single political party. Webster's New Collegiate Dictionary defines caucus as:

"a closed meeting of a group of persons belonging to the same political party or faction usu. to select candidates or to decide on policy."

If the gatherings described in your letter are attended by legislators who are members of two political parties, I do not believe that a democrat legislator could be characterized as a "guest" or that they can be described as political caucuses exempt from the Open Meetings Law. Again, they would appear to be "meetings" that fall within the coverage of that statute.

In Buffalo News v. Buffalo Common Council [585 NYS 2d 275 (1992), which involved the interpretation of the exemption regarding political caucuses, the court concentrated on the expressed legislative intent appearing in §100 of the Open Meetings Law, stating that: "In view of the overall importance of Article 7, any exemption must be narrowly construed so that it will not render Section 100 meaningless" (id., 278).

I believe that the thrust of the decision indicates that, in view of the intent of the Open Meetings Law, exceptions to the right to attend meetings should be construed narrowly. Based on its intent, if a member registered to a political party different from that of the majority joins the majority to discuss public business, again, it is my view that the gathering is no longer a political caucus, but rather a "meeting." The decision continually referred to the term "meeting" and the deliberative process, and the language of the decision in many ways is analogous to that of the Appellate Division in Orange County Publications, supra. Specifically, it was stated in Buffalo News that:

"The Court of Appeals in Orange County (supra) also declared: 'The purpose and intention of the State Legislature in the present context are interpreted as expressed in the language of the statute and its preamble.' The legislative intent, therefore, expressed in Section 108, must be read in conjunction with the Declaration of Legislative Policy of Article 7 as set forth in its preamble, Section 100.

"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. It is the only climate under which the commonwealth will prosper and enable the governmental process to operate for the benefit of those who created it" (id., 277).

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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