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OML-AO-3523

October 8, 2002

Dear Mr. Friedman:

It was a pleasure to see you in Clarence, and I hope that you found the session to be of value.

You have asked whether, in my view, the decision rendered in Hill v. Planning Board [140 AD2d 967 (1988)] may be distinguished from or is superceded by Orange County Publications, Inc. v. City of Newburgh [60 AD2d 409, aff'd 45 NY2d 947 (1978)]. I view Orange County Publications as the seminal decision regarding the Open Meetings Law and Hill as something of an aberration. As you aware, the court in Hill determined that a gathering of public body did not constitute a meeting because "no determinations were made at the July 21 assembly which affected the public...." In contrast, as indicated in the opinion addressed to you on July 30, the Appellate Division in Orange County Publications focused specifically on the scope of the definition of the term "meeting" and dealt expansively with the matter, stating 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.).

Since the Court of Appeals later unanimously affirmed the holding of the Appellate Division, I believe that the direction provided in Orange County Publications, rather than that offered in Hill, is persuasive and, in essence, the law of the land.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

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