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OML-AO-3480

June 27, 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 May 22 and the materials attached to it. You have sought an advisory opinion concerning the status of local workforce investment boards (LWIB's) under the Open Meetings Law.

You referred to advisory opinions rendered by this office which appear to be inconsistent, and having reviewed them and the federal statutes to which they relate, I agree with your assessment. The first, OML-AO-2932, involved a private industry council, and it was advised that the entity in question is likely subject to the Open Meetings Law. The second, OML-AO-3341, dealt with an LWIB, and it was advised that the Open Meetings Law likely does not apply. For the reasons offered in the ensuing analysis and upon further review of the issue, I believe that a court would determine that LWIB's are subject to the Open Meetings Law.

As you are aware, the Open Meetings Law applies to meetings of public bodies, and §102(2) of the Open Meetings Law 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."

Based on the foregoing, to constitute a "public body", an entity must consist of at least two members, conduct public business and perform a governmental function for the state or for one or more public corporations, i.e., municipalities.

In consideration of the means by which LWIB's are created, a key issue in my view involves whether they function solely pursuant to federal law. The rationale for the second opinion to which you referred related to a case dealing with the status of a "laboratory animals use committee" (LAUC) created by federal law in which the Court of Appeals held that "the powers of the LAUC derive solely from Federal law...and for that reason alone...the Committee is not a public body as defined by the Open Meetings Law" [American Society for the Prevention of Cruelty to Animals v. Board of Trustees of the State University of New York, 79 NY2d 927, 929 (1992)].

The federal statute authorizing the creation of a LAUC, 7 USC §2143, states that "each research facility [shall] establish at least one Committee", that "[e]ach Committee shall be appointed by the chief executive officer of each such research facility and shall be composed of not fewer than three members", and that "[s]uch members shall possess sufficient ability to assess animal care, treatment, and practices in experimental research as determined by the needs of the research facility and shall represent society's concerns regarding the welfare of animal subjects used at such facility." In short, the head of every facility, whether public or private, that engages in laboratory research involving animals, must establish a LAUC. No entity of federal, state or local government has the authority to designate the members of a LAUC, there is no general governmental oversight of or participation in the activities of a LAUC, and there is no mandatory legal nexus between a LAUC and state or local government.

In contrast, subdivision (a) of §116 the Workforce Investment Act of 1998 (H.R. 1385) provides that the governor of a state "shall designate local workforce areas within the State". Further, states are heavily involved in workforce planning functions, for subdivision (c) provides that "a State may require regional planning by local boards", "require" those boards to share information, and "require the local boards for a designated region to coordinate the provision of workforce investment activities..." The introductory portions §117 provide as follows:

"(a) ESTABLISHMENT. - There shall be established in each local area of a State, and certified by the Governor of the State, a local workforce investment board, to set policy for the portion of the statewide workforce investment system within the local area (referred to in this title as a 'local workforce investment system').

(b) MEMBERSHIP. -

(1) STATE CRITERIA. - The Governor of the State, in partnership with the State board, shall establish criteria for use by chief elected officials in the local areas for appointment of members of the local boards in such local areas in accordance with the requirements of paragraph (2)."

Additionally, the initial provisions of subdivision (c) of §117 state: "(A) IN GENERAL. - The chief elected official in a local area is authorized to appoint the members of the local board for such area, in accordance with the State criteria established under subsection (b).

(B) MULTIPLE UNITS OF LOCAL GOVERNMENT IN AREA. - (i) IN GENERAL - In a case in which a local area includes more than 1 unit of general local government, the chief elected officials of such units may execute an agreement that specifies the respective roles of the individual chief elected officials - (I) in the appointment of the members of the local board from the individuals nominated or recommended to be such members in accordance with the criteria established under subsection (b); and (II) in carrying out any other responsibilities assigned to such officials under this subtitle. (ii) LACK OF AGREEMENT. - If, after a reasonable effort, the chief elected officials are unable to reach agreement as provided under clause (i), the Governor may appoint the members of the local board from individuals so nominated or recommended."

Unlike a LAUC, where state and local government play no role at all in implementing the statute, in the case of the LWIB, the Governor and state and local government officials have the ability and often the responsibility to carry out certain functions in implementing federal law. In its consideration of the LAUC, the Court of Appeals found that:

"...the Open Meetings Law excludes Federal bodies from its ambit.

"The LAUC's constituency, powers and functions derive solely from Federal law and regulations. Thus, even if it could be characterized as a governmental entity, it is at most a Federal body that is not covered under the Open Meetings Law" (id., 929).

The "powers and functions" of the LWIB, in my view, do not "derive solely" from federal law; they derive in part from the powers, functions and duties of state and local government officials. That being so, I believe that, in the words of the definition of "public body", they "conduct public business" and are involved in "performing a governmental function for the state...or for a public corporation", such as a county, city, town or village. If my conclusion is accurate, a LWIB constitutes a public body subject to the Open Meetings Law.

Lastly, you asked whether LWIB's also fall within the scope of §41 of the General Construction Law. That statute, which was recently amended to include language concerning videoconferencing, states 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 through 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 none of the persons or officers disqualified from acting."

Since LWIB's consist of at least three persons, and since those persons "are charged with [a] public duty to be performed or exercised by them jointly or as a board", I believe that those entities are subject to §41 of the General Construction Law, as well as the Open Meetings Law.

I hope that I have been of assistance. Should any questions arise regarding the foregoing, please feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Tom Pritchard