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OML-AO-3434

April 4, 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.

Dear

I have received your letter of March 4 in which you requested an advisory opinion concerning the application of the Open Meetings Law.

In brief you wrote that the Fulton County Board of Supervisors consists of 20 members, and that the "total weighted vote for the entire board is 551." You then referred to a group of 7 supervisors having a weighted vote of 168 who met to discuss issues of common interest, and indicated that 4 are members of a seven member committee. Following that gathering, it was suggested that it was an "illegal meeting."

From my perspective, unless the four members of the committee met in their capacities as members of that committee to discuss the business of the committee, the Open Meetings Law would not have applied. In this regard, I offer the following comments.

First, the Open Meetings Law pertains to meetings of public bodies, and a "meeting" is a convening of a quorum of a public body for the purpose of conducting public business [see §102(1)]. Absent a quorum, the Open Meetings Law does not apply [see e.g., Mobil Oil Corp. v. City of Syracuse Industrial Development Agency, 224 AD2d 15, motion for leave to appeal denied, 89 NY2d 811 (1997)]. In the context of the situation that you described, until a quorum of the Board has convened, which would presumably involve a gathering of members representing 276 weighted votes, a gathering would not constitute a meeting of the Board, and the Open Meetings Law, in my opinion, would not apply.

Second, however, when a committee consists solely of members of a public body, such as the Board of Supervisors, I believe that the Open Meetings Law is applicable, for a committee itself constitutes a "public body."

By way of background, when the Open Meetings Law went into effect in 1977, questions consistently arose with respect to the status of committees, subcommittees and similar bodies that had no capacity to take final action, but rather merely the authority to advise. Those questions arose due to the definition of "public body" as it appeared in the Open Meetings Law as it was originally enacted. Perhaps the leading case on the subject also involved a situation in which a governing body, a school board, designated committees consisting of less than a majority of the total membership of the board. In Daily Gazette Co., Inc. v. North Colonie Board of Education [67 AD 2d 803 (1978)], it was held that those advisory committees, which had no capacity to take final action, fell outside the scope of the definition of "public body".

Nevertheless, prior to its passage, the bill that became the Open Meetings Law was debated on the floor of the Assembly. During that debate, questions were raised regarding the status of "committees, subcommittees and other subgroups." In response to those questions, the sponsor stated that it was his intent that such entities be included within the scope of the definition of "public body" (see Transcript of Assembly proceedings, May 20, 1976, pp. 6268-6270).

Due to the determination rendered in Daily Gazette, supra, which was in apparent conflict with the stated intent of the sponsor of the legislation, a series of amendments to the Open Meetings Law was enacted in 1979 and became effective on October 1 of that year. Among the changes was a redefinition of the term "public body". "Public body" is now defined in §102(2) to include:

"...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."

Although the original definition made reference to entities that "transact" public business, the current definition makes reference to entities that "conduct" public business. Moreover, the definition makes specific reference to "committees, subcommittees and similar bodies" of a public body.

In view of the amendments to the definition of "public body", I believe that any entity consisting of two or more members of a public body, such as a committee or subcommittee consisting of members of a county legislature, would fall within the requirements of the Open Meetings Law, assuming that a committee discusses or conducts public business collectively as a body [see Syracuse United Neighbors v. City of Syracuse, 80 AD 2d 984 (1981)]. Further, as a general matter, I believe that a quorum consists of a majority of the total membership of a body (see General Construction Law, §41). Therefore, leaving aside the matter of weighted votes, if, for example, the Board consists of twenty, its quorum would be eleven; in the case of a committee consisting of seven, its quorum would be four.

When a committee is subject to the Open Meetings Law, I believe that it has the same obligations regarding notice, openness, and the taking of minutes, for example, as well as the same authority to conduct executive sessions, as a governing body [see Glens Falls Newspapers, Inc. v. Solid Waste and Recycling Committee of the Warren County Board of Supervisors, 195 AD 2d 898 (1993)].

If the seven members met, but not due to their membership on a particular committee, again, I do not believe that the Open Meetings Law would have applied. However, if four of the seven gathered in their capacities as members of a particular committee for the purpose of discussing the business of that committee, and other members joined them, since four of seven would constitute a quorum of the committee, a gathering of that nature, would, in my view, have been a meeting of the committee that would have fallen within the coverage of the Open Meetings Law.

I hope that the foregoing serves to clarify your understanding of the Open Meetings Law and that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Board of Supervisors