Michael K. Lambert, Esq. Shaw & Perelson, LLP 2-4 Austin Court Poughkeepsie, NY 12605
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 Mr. Lambert:
I have received your letter of April 8 in which you sought an advisory opinion relating to the application of the Open Meetings Law.
The matter involves a school district with a nine member board of education. You wrote that during the past several years:
"... the district has engaged in a practice whereby several (no more than 3) Board members at a time would meet privately with the Superintendent, the business official and/or other administrative staff to address questions that they had concerning the status of the tentative budget that would thereafter be presented by the Superintendent at a public meeting. These meetings would take place over the course of several days, ultimately leading to all Board members attending one or more of such meetings. There is [sic] no Board-determined established committees. Rather, the composition of these groups of Board members would be determined by their availability to attend the scheduled meetings."
Your question is whether the gatherings in question would be subject to the Open Meetings Law, and in this regard, I offer the following comments.
First, as you are aware, the Open Meetings Law applies to meetings of public bodies, and §102(2) of that statute 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."
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.
Based on the foregoing, I believe that any entity consisting of two or more members of a public body, such a committee of a school board consisting of two or more of its members, 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)]. When a committee is subject to the Open Meetings Law, I believe that it has the same obligations regarding notice and openness, 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)].
From my perspective, there is a distinction between standing committees and the situation that precipitated your question. A standing committee is an "entity" that carries out a duty in a particular area, collectively, as a body. The situation that you described in my view does not involve an "entity" or the designation of members to carry out a continuing duty, as in the case of a standing committee. The members are apparently not designated as a committee nor would they function in the manner of a committee.
Second, I do not believe that the Open Meetings Law applies unless a quorum of a public body is present. Section 41 of the General Construction Law, entitled "Quorum and majority", states in relevant part that:
"Whenever three of 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 though 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 one of the persons or officers disqualified from acting."
The issue in the context of your inquiry involves the application of the Open Meetings Law to a situation in which the gatherings include less than a quorum of the board. I note that if there is an intent to ensure the presence of less than a quorum at any given time in order to evade the Open Meetings Law, there is a judicial decision that infers that such activity would contravene that statute. As stated in Tri-Village Publishers v. St. Johnsville Board of Education:
"It has been held that, in order for a gathering of members of a public body to constitute a 'meeting' for purposes of the Open Meetings Law, a quorum must be present (Matter of Britt v County of Niagara, 82 AD2d 65, 68-69). In the instant case, there was never a quorum present at any of the private meetings prior to the regular meetings. Thus, none of these constituted a 'meeting' which was required to be conducted in public pursuant to the Open Meetings Law.
"We recognize that a series of less-than-quorum meetings on a particular subject which together involve at least a quorum of the public body could be used by a public body to thwart the purposes of the Open Meetings Law...However, as noted by Special Term, the record in this case contains no evidence to indicate that the members of respondent engaged in any attempt to evade the requirements of the Open Meetings Law" [110 AD 2d 932, 933-934 (1985)].
In Tri-Village, the Court found no evidence of an intent to circumvent the Open Meetings Law when a series of meetings was held, each involving less than a quorum of a board of education. However, as I interpret the passage quoted above, when there is an intent to evade the application of the Open Meetings Law by ensuring that less than a quorum is present, and, by design, less than a quorum gathers to discuss public business, such action would represent a failure to comply with that statute.
Unless there is or has been an intent to circumvent the Open Meetings Law in the context of the situation of your concern, a court in my opinion would not find that the Open Meetings Law would be applicable.
I hope that I have been of assistance.
Robert J. Freeman Executive Director