Mr. Barry Loeb
14 Jeanette Drive
Port Washington, N.Y. 11050
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, unless otherwise indicated.
Dear Mr. Loeb:
I have received your letter of January 26. You have sought my comments concerning "the practices of the Port Washington Police District and their responsibilities under the Open Meetings Law".
You wrote that the "Police District feels that a single posting on the door to the meeting room satisfies the intent of the law", but that it is your view "that since only 52 of the almost 200 meetings held in 1992 were regularly scheduled, the public would have to make a special effort to enter Police Headquarters on an almost daily basis to be properly advised as to the meeting schedule". Further, you suggested that "many of the 'special' meetings...could and should have been held on a scheduled basis", for they related to issues of public interest and concern, and because those meetings do not "fit into the definition of 'special' or 'emergency'".
In this regard, I offer the following comments.
First, since I am unfamiliar with the legal status of a "police district" and had never received questions about such a district, I contacted the Police District. Having spoken with Commissioner Frank Scabbo, I was informed that the Port Washington Police District was created by a special act of the State Legislature and that it is the only district of its kind in New York and perhaps the nation. Commissioner Scabbo indicated that the District has three commissioners.
Second, §102(2) of the Open Meetings Law 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 state or for an agency or department thereof, or for a public corporation as defined in section sixty-six or the general construction law, or committee or subcommittee or other similar body of such pubic body."
Since the Board of Commissioners consists of three members and performs a governmental function for a public corporation (the Police District), I believe that it is a "public body" required to comply with the Open Meetings Law.
Third, the Open Meetings Law requires that notice be given to the news media and posted prior to every meeting. Specifically, section 104 of that statute provides that:
"1. Public notice of the time and place of a meeting scheduled at least one week prior thereto shall be given to the news media and shall be conspicuously posted in one or more designated public locations at least seventy-two hours before each meeting.
2. Public notice of the time and place of every other meeting shall be given, to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a reasonable time prior thereto.
3. The public notice provided for by this section shall not be construed to require publication as a legal notice."
Stated differently, if a meeting is scheduled at least a week in advance, notice of the time and place must be given to the news media and to the public by means of posting in one or more designated public locations, not less than seventy-two hours prior to the meeting. If a meeting is scheduled less than a week an advance, again, notice of the time and place must be given to the news media and posted in the same manner as described above, "to the extent practicable", at a reasonable time prior to the meeting. Although, the Open Meetings Law does not make reference to "special" or "emergency" meetings, if, for example, there is a need to convene quickly, the notice requirements can generally be met by telephoning the local news media and by posting notice in one or more designated locations.
Further, notice must be "conspicuously posted in one or more designated public locations." Consequently, I believe that a public body must designate, presumably by resolution, the location or locations where it will routinely post notice of meetings. To meet the requirement that notice be "conspicuously posted", notice must in my view be placed at a location that is visible to the public.
Lastly, the judicial interpretation of the Open Meetings Law suggests that the propriety of scheduling a meeting less than a week in advance is dependent upon the actual need to do so. As stated in Previdi v. Hirsch:
"Whether abbreviated notice is 'practicable' or 'reasonable' in a given case depends on the necessity for same. Here, respondents virtually concede a lack of urgency: They deny petitioner's characterization of the session as an 'emergency' and maintain nothing of substance was transacted at the meeting except to discuss the status of litigation and to authorize, pro forma, their insurance carrier's involvement in negotiations. It is manifest then that the executive session could easily have been scheduled for another date with only minimum delay. In that event respondents could even have provided the more extensive notice required by POL §104(1). Only respondent's choice in scheduling prevented this result.
"Moreover, given the short notice provided by respondents, it should have been apparent that the posting of a single notice in the School District offices would hardly serve to apprise the public that an executive session was being called...
"In White v. Battaglia, 79 A.D. 2d 880, 881, 434 N.Y.S.ed 637, lv. to app. den. 53 N.Y.2d 603, 439 N.Y.S.2d 1027, 421 N.E.2d 854, the Court condemned an almost identical method of notice as one at bar:
"Fay Powell, then president of the board, began contacting board members at 4:00 p.m. on June 27 to ask them to attend a meeting at 7:30 that evening at the central office, which was not the usual meeting date or place. The only notice given to the public was one typewritten announcement posted on the central office bulletin board...Special Term could find on this record that appellants violated the...Public Officers Law...in that notice was not given 'to the extent practicable, to the news media' nor was it 'conspicuously posted in one or more designated public locations' at a reasonable time 'prior thereto' (emphasis added)" [524 NYS 2d 643, 645 (1988)].
Based upon the foregoing, merely posting a single notice would fail to comply with the Open Meetings Law, for the Law requires that notice be given to the news media and posted "conspicuously" in one or more "designated public locations" prior to meetings. Further, absent an emergency or urgency, the Court in Previdi suggested that it would be unreasonable to conduct meetings on short notice, unless there is some necessity to do so.
In an effort to provide guidance and enhance compliance with the Open Meetings Law, a copy of this opinion will be forwarded to the District.
I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.
Robert J. Freeman
RJF:pb cc: Commissioner Frank Scabbo, Port Washington Police District