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.
I have received your letter of July 3, as well as the materials attached to it. You have sought an advisory opinion concerning the status of the Pharmacy & Therapeutics Committee ("the Committee"), an entity created by the State Department of Health, under the Open Meetings Law.
According to your letter, the Department in the 2001 Executive Budget "proposed to statutorily create a P & T Committee", but that aspect of the budget was rejected by the State Legislature. Following the rejection by the Legislature, the Department created the Committee "as a completely internal mechanism, requiring no additional statutory or regulatory authority." The Committee makes recommendations to the Commissioner, who has the authority to make determinations concerning the recommendations.
It is your view that the meetings of the Committee "are official meetings of a public body for the purposes of conducting public business" and that "it appears that "closed work sessions" held by the Committee "violate the letter and the intent of the NYS Open Meetings Law."
Based on judicial decisions, I do not believe that the Committee is required to comply with the Open Meetings Law. In this regard, I offer the following comments.
As you are aware, the Open Meetings Law is applicable to meetings of public bodies, and §102(2) 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, a public body is, in my view, an entity required to conduct public business by means of a quorum that performs a governmental function and carries out its duties collectively, as a body. The definition refers to committees, subcommittees and similar bodies of a public body, and judicial interpretations indicate that if a committee, for example, consists solely of members of a particular public body, it constitutes a public body [see e.g., Glens Falls Newspapers v. Solid Waste and Recycling Committee of the Warren County Board of Supervisors, 195 AD2d 898 (1993)]. For instance, in the case of a board of education consisting of seven members, four would constitute a quorum, and a gathering of that number or more for the purpose of conducting public business would be a meeting that falls within the scope of the Law. If that board designates a committee consisting of three of its members, the committee would itself be a public body; its quorum would be two, and a gathering of two or more, in their capacities as members of that committee, would be a meeting subject to the Open Meetings Law.
Several judicial decisions, however, indicate generally that advisory bodies, other than those consisting of members of a particular governing body, that have no power to take final action fall outside the scope of the Open Meetings Law. As stated in those decisions: "it has long been held that the mere giving of advice, even about governmental matters is not itself a governmental function" [Goodson-Todman Enterprises, Ltd. v. Town Board of Milan, 542 NYS 2d 373, 374, 151 AD 2d 642 (1989); Poughkeepsie Newspaper v. Mayor's Intergovernmental Task Force, 145 AD 2d 65, 67 (1989); see also New York Public Interest Research Group v. Governor's Advisory Commission, 507 NYS 2d 798, aff'd with no opinion, 135 AD 2d 1149, motion for leave to appeal denied, 71 NY 2d 964 (1988)]. In one of the decisions, Poughkeepsie Newspaper, supra, a task force was designated by then Mayor Koch consisting of representatives of New York City agencies, as well as federal and state agencies and the Westchester County Executive, to review plans and make recommendations concerning the City's long range water supply needs. The Court specified that the Mayor was "free to accept or reject the recommendations" of the Task Force and that "[i]t is clear that the Task Force, which was created by invitation rather than by statute or executive order, has no power, on its own, to implement any of its recommendations" (id., 67). Referring to the other cases cited above, the Court found that "[t]he unifying principle running through these decisions is that groups or entities that do not, in fact, exercise the power of the sovereign are not performing a governmental function, hence they are not 'public bod[ies] subject to the Open Meetings Law..."(id.).
In the context of your inquiry, since the Committee has no authority to take any final and binding action for or on behalf of a government agency, I do not believe that it constitutes a public body or, therefore, is obliged to comply with the Open Meetings Law.
The foregoing is not intended to suggest that the Committee cannot hold open meetings. On the contrary, it may choose to conduct meetings in public, and similar entities have done so, even though the Open Meetings Law does not require that they do so.
I hope that the preceding commentary serves to enhance your understanding of the Open Meetings Law and that I have been of assistance.
Robert J. Freeman
cc: Donald Behrens