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January 28, 1993

 

 

Ms. Mary Beth Kearns
President
Southside Civic Association
69 Reid Avenue
Rockville Centre, NY 11570

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 Ms. Kearns:

I have received your letter of January 12 in which you requested an advisory opinion.

According to your letter:

"Recently, South Nassau Hospital applied for a zoning variance to the Town of Hempstead regarding the installation of an autoclave. The zoning board directed that the applicant hold dialogue with members of the surrounding community to address any related concerns. Toward that end an ad hoc committee was formed. The committee originally was comprised of the Superintendent of Schools for the Oceanside district, a member of the Oceanside's school board, representatives of the PTA and officers of two neighboring civic associations.

"All committee meetings were held on the property of Oceanside public schools. On January 7, a meeting of the Committee was held with representatives of the hospital. By majority vote of the committee and at the request of the hospital, this meeting was closed to the public."

The question is whether the meetings to which you referred should have been conducted open to the public.

In this regard, I offer the following comments.

First, 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."

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, depending upon its purpose, an event held on school property might be required to be conducted in public, even though the event does not involve a public body or the Open Meetings Law. The Education Law enables a board of education to authorize that school property be used for various purposes, including:

"For holding social, civic and recreational meetings and entertainments, and other uses pertaining to the welfare of the community; but such meetings, entertainment and uses shall be non-exclusive and shall be open to the general public" [§414(1)(c)].

Therefore, if an entity, such as a PTA, or perhaps a citizens' committee, meets on school property for a "civic" purpose, or for a purpose "pertaining to the welfare of the community", their meetings would appear to be open to the public, even if the Open Meetings Law does not apply.

Based on the facts that you provided, it appears that the meetings held on school property that you described were held for a "civic" purpose or for a purpose "pertaining to the welfare of the community." If that was so, it appears that §414 of the Education Law would have required that the meetings be open to the public.

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: Dr. Elliot Garfinkel, Superintendent