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July 15, 1993

 

 

Mr. Arthur Springer
150 W. 80th Street - Apt. #4A
New York, N.Y. 10024-6310

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. Springer:

I have received your letter of July 1 and 2, as well as various related materials.

Your comments focus upon the Bellevue Hospital Center Community Advisory Board and your inability to acquire agendas and similar information prior to meetings in order to enable you to be aware of the subjects to be considered at its meetings. You have sought an advisory opinion concerning the matter, and in this regard, I offer the following comments.

First, as you are aware, pursuant to §7384(11) of the Unconsolidated Laws, the New York City Health and Hospitals Corporation has the duty to:

"...establish a community advisory board for each of its hospitals to consider and advise the corporation and the hospital upon matters concerning the development of any plans or programs of the corporation, and may establish rules and regulations with respect to such boards."

That provision also requires that members of the advisory boards "shall be representatives of the community served by the hospital."

Second, the Open Meetings Law is applicable 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)]. However, the entity in question is not ad hoc, for it has a continual existence and function concerning the duty to advise the Corporation. Moreover, it has been held that an advisory body created by statute, which is so in the case the community advisory boards, is a public body subject to the Open Meetings Law [see MFY Legal Services, Inc. v. Toia, 402 NYS 2d 510 (1977)].

Third, assuming that a community advisory board is required to comply with the Open Meetings Law, it is required to provide notice of its meetings pursuant to §104 of the Law. That provision states in relevant part 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."

While §104 requires that a public body provide notice of the time and place of its meetings, there is nothing in the Open Meetings Law that requires that the notice include reference to the subjects to be considered or that notices be mailed to individuals on request. Similarly, there is no requirement in the Open Meetings Law pertaining to the preparation of an agenda. Consequently, when public bodies prepare and distribute detailed agendas prior to their meetings, they do so, in my view, not due to requirements imposed by law, but rather as a public service. Therefore, while the Community Advisory Board could, by rule, policy or procedure prepare and disseminate the information in which you are interested in advance of its meetings, by law, I do not believe that it is required to do so.

I regret that I cannot be of greater assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Zita Fearon