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January 22, 1998

 

 

Mr. Jaime P. Cordero, Jr.
112 Woodshire
North Getzville, NY 14068

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.

Dear Mr. Cordero:

As you are aware, I have received your letter of December 30 and the materials attached to it.

In the materials, you presented what you characterize as "evidence of...violations of the Open Meetings Law" by the Williamsville Central School District Board of Education. Your contention focuses on two statements of policy adopted by the Board in 1989.

Policy 2220 pertains to "Ad Hoc Advisory Committees" and states that the Board may establish such committees to be appointed "for a specific task or function and time period." The President of the Board and the Superintendent serve as ex officio members on such committees. Although other Board members can also serve as ex officio members, it appears that there is an intent in Policy 2220 to limit the number of Board members on an ad hoc advisory committee to less than a majority of its membership "so as not to place the Board in the position of approving recommendations without the advice and consent of the full Board."

Policy 1530, entitled "Meetings of Committees of the Board of Education", states in relevant part that "All committees appointed by the Board of Education must abide by the provisions of the Open Meetings Law.

Notwithstanding the foregoing, you were informed by a District official that "a citizen's (sic) advisory committee that is purely advisory and does not involve the exercise of sovereign powers does not have to be open to the public." It is your view that such a conclusion represents a violation of law.

In this regard, I offer the following comments.

First, it is noted that recent decisions indicate generally that ad hoc entities consisting of persons other than members of public bodies having 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 Newspapers 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)]. Therefore, an advisory body such as a citizens' advisory committee would not in my opinion be subject to the Open Meetings Law.

Second, however, when a committee consists solely of members of a public body, such as a board of education, I believe that the Open Meetings Law is applicable. The phrase "public body" is defined in section 102(2) of the Open Meetings Law 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 of "public body" enacted in 1976 made reference to entities that "transact" public business, the current definition as amended in 1979 makes reference to entities that "conduct" public business and includes specific reference to "committee, subcommittees and similar bodies" of a public body.

In view of the definition of "public body", I believe that any entity consisting of two or more members of a public body would fall within the requirements of the Open Meetings Law [see also Syracuse United Neighbors v. City of Syracuse, 80 AD 2d 984 (1981)]. Therefore, a standing committee of Board members would in my view constitute a public body subject to the Open Meetings Law that is separate and distinct from the Board of Education. Further, as a general matter, I believe that a quorum consists of a majority of the total membership of a body (see e.g., General Construction Law, section 41). As such, in the case of a committee consisting of three, for example, a quorum would be two.

Based upon the foregoing, the ad hoc advisory committees established by Policy 2220 would not ordinarily be subject to the Open Meetings Law. Nevertheless, I believe that a governing body, such as a board of education, could in its discretion require that ad hoc committees comply with the Open Meetings Law. Moreover, §110(2) of the Open Meetings Law states that:

"Any provision of general, special or local law or charter, administrative code, ordinance, rule or regulation less restrictive with respect to public access than this article [the Open Meetings Law] shall not be deemed superseded hereby."

Therefore, is a governing body adopts a rule or policy less restrictive with respect to public access than the Open Meetings Law, that rule or policy would be effective, notwithstanding the provisions of the Open Meetings Law. In this instance, if Policy 1530 is applicable, ad hoc advisory committees established under Policy 2220 would be required to comply with the Open Meetings Law.

I point out that I have discussed the issue with several representatives of the District, including the Superintendent and a member of the Board. The Superintendent has contended that Policy 1530 is intended to pertain solely to committees consisting of Board members and not to ad hoc advisory committees. He also indicated that your contention that Policy 1530 applies to ad hoc advisory committees is inconsistent with the context in which that policy appears. Without familiarity with the District's policy book as a whole, I cannot ascertain whether Policy 1530, when read in the context in which it is published, relates to committees consisting of Board members only, or whether it may apply to the committees that may be established by Policy 2220. In either case, it has been suggested to a member of the Board that the two policies in question should, in my opinion, be reviewed and clarified in order to avoid problems of interpretation and application.

I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Howard Welker, Superintendent
Board of Education