January 28, 1993
Mrs. Sondra Bauernfeind
Sullivan County Conservative Party
73 Brittman Road
Mongaup Valley, NY 12762
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. Bauernfeind:
I have received your letter of January 12 in which you requested an advisory opinion concerning the Open Meetings Law.
Specifically, you asked "whether the Charter Drafting Committee appointed by the Chairman of the Charter Commission appointed by the Sullivan County Board of Supervisors has to operate under the Open Government Laws." Your inquiry was apparently precipitated by your exclusion from a meeting of the Charter Drafting Committee.
In this regard, I offer the following comments.
First, it is noted that recent decisions indicate generally that advisory 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-Todson 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, 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 added specific reference to "committees, 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)].
Third, the Charter Commission designated by the County Board of Supervisors in my opinion constitutes a public body subject to the Open Meetings Law, even though its authority may be advisory. When an advisory body is created by statute, it has been held that such a body falls within the requirements of the Open Meetings Law [see MFY Legal Services v. Toia, 93 Misc. 2d 147, 402 NYS 2d 510 (1977)]. In this instance, a statute authorizes the creation of a charter commission. Specifically, §33(5) of the Municipal Home Rule Law states in relevant part that:
"The board of supervisors by resolution may provide that a draft of a proposed county charter or of an amendment or repeal thereof, shall be prepared under its supervision, the supervision of an officer or committee of the board, or by a charter commission appointed by or pursuant to such resolution."
As such, I believe that a charter commission is a public body. Further, assuming that the Charter Drafting Committee was designated by and consists of members of the Charter Commission, it would be a committee of a public body and, therefore, subject to the Open Meetings Law. Assuming further that a majority of the members of such a committee gathered to conduct public business as a body, the gathering in question in my opinion would have constituted a meeting that should have been held in accordance with the Open Meetings Law.
I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.
Robert J. Freeman
cc: Sullivan County Charter Commission