May 24, 1993
Vincent P. Campion
111 Rutland Road
Freeport, NY 11520
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. Campion:
I have received your letter of April 27, which, for reasons unknown, did not reach this office until May 10.
In your capacity as a member of the Village of Freeport Board of Trustees, you wrote that the new Mayor has instituted a change in practive concerning Board meetings. In the past, when action was to be taken, for example, following an executive session, the Board "always reconvened in the same open meeting room that the original legislative session took place in." Your concern is that:
"...now, Mayor Thompson, after executive session, reconvenes the Board in open legislative session (after the public and press have departed) in order to discuss and deliberate the agenda for the following Board meeting. The issues are discussed, deliberated and decided so that in effect, the following legislative meeting is basically scripted and the public has no idea what was discussed. Furthermore, when the board reconvenes after executive session, it is not in the main meeting room but rather in the 'Board of Trustees Room' adjacent to the Mayor's Office where executive session was held.
"The public and/or the press have no way of knowing when the Board will reconvene and except for a small sign in the main meeting room, they don't even know that the Board, as a matter of policy, will reconvene or where they will reconvene."
You have sought my opinion on the matter. In this regard, I offer the following comments.
First, it is emphasized that §102(3) of the Open Meetings Law defines the phrase "executive session" to mean a portion of an open meeting during which the public may be excluded. As such, an executive session is not separate from an open meetings; on the contrary, it is part of an open meeting. That being so, unless it is specifically announced that no business will no be conducted and that the meeting will be adjourned following an executive session, those in attendance at a meeting may in my opinion properly assume that an open meeting will continue after an executive session.
Second, §104 of the Law requires that every meeting be preceded by notice indicating the time and place of a meeting. From my perspective, it is clear, based upon the language of the Law and its intent, that the public has the right to know where and when a public body conducts its business. Moving a meeting from its original location without so informing the public is a manner that guarantees the ability to know where and when a meeting is being held in my view would be inconsistent with the requirements of the Law. Under the circumstances that you described, I believe that, following an executive session, the Board should return to the original meeting room or, alternatively, announce to those in attendance that the meeting will continue in a different room.
Lastly, I point out the definition of "meeting" [see Open Meetings Law, §102(1) has been broadly interpreted by the courts. In a landmark decision rendered in 1978, the Court of Appeals, the state's highest court, found that any gathering of a quorum of a public body for the purpose of conducting public business is a "meeting" that must be conducted open to the public, whether or not there is an intent to have action and regardless of the manner in which a gathering may be characterized [see Orange County Publications v. Council of the City of Newburgh, 60 Ad 2d 409, aff'd 45 NY 2d 947 (1978)].
The decision rendered by the Court of Appeals was precipitated by contentions made by public bodies that so-called "work sessions" and similar gatherings, such as "agenda sessions," held for the purpose of discussion, but without an intent to take action, fell outside the scope of the Open Meetings Law. In discussing the issue, the Appellate Division, whose determination was unanimously affirmed by the Court of Appeals, stated 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.).
Based upon the direction given by the courts, when a majority of the Board is present to discuss the Village business, any such gathering, in my opinion, would constitute a "meeting" subject to the Open Meetings Law.
In short, I believe that the Board's discussion of its agenda prior to its upcoming meeting is itself a meeting, or in this case in accordance with the Open Meeting Law.
I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.
Robert J. Freeman