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July 15, 1993

 

 

Ms. Patricia Villanova
14 West Avenue
Putnam Valley, NY 10579

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. Villanova:

I have received your letter of July 7 in which you requested an advisory opinion.

Attached to your letter is a resolution adopted by the Town Board of the Town of Putnam Valley in which it was resolved that:

"the Town Board appoint an Implementation Task Force, whose responsibility will be to assure that all Reviews, Hearings and Procedures, with regard to the adoption of the proposed New Zoning Ordinance, as required by SEQRA and New York State Laws are met..."

The resolution also describes the composition of the Task Force, which consists of six members.

You wrote that the Town Board and the Task force have taken the position the Task Force is not subject to the Open Meetings Law or the notice requirements imposed by SEQRA. You added that:

"To date, this Task Force has been meeting at least once a week since it was appointed. No minutes are being kept of these meetings and no notice is given to the public. The work being done by this Task Force consists of the following: a page by page, line by line reading, analysis and modification of the proposed new Zoning law, including changing the language, definitions, requirements and jurisdiction of the planning and Zoning Boards and building inspector's office. Based upon their revisions and recommendations, an Environmental Impact Statement will be drafted to comply with SEQRA and ultimately the Town Board will rely on this input when they vote on the new law" (emphasis yours).

You have asked for an opinion "as to whether or not the Task Force should comply with the provisions of the Freedom of Information." In the context of your letter, it is assumed, however, that your question is whether the Task Force is required to comply with the Open Meetings Law.

In this regard, since this office has neither expertise nor jurisdiction relative to SEQRA, I cannot offer guidance concerning the impact of that statute on the situation that you described. However, I offer the following comments concerning the Open Meetings Law.

First, 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." The issue, therefor, is whether the Task Force is a "public body" subject to the Open Meetings Law.

Second, recent decisions indicate generally that ad hoc advisory bodies that do not consist wholly of members of public bodies that have 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 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 entity having only the authority to recommend, such as a citizens' advisory committee, would not in my opinion be subject to the Open Meetings Law.

Third, however, as I understand the resolution, the authority of the Task Force is not merely advisory; rather, the resolution confers a "responsibility" on the Task Force "to assure" that various legal requirements are met. If my understanding is accurate, the Task Force, in my opinion, would constitute a public body required to comply with the Open Meetings Law. The Task Force is an entity consisting of two or more members; I believe that it can conduct its business only by means of a quorum (see General Construction Law, §41); and it conducts public business and performs a governmental function for a public corporation, the Town of Putnam Valley. As such, to comply with the Open Meetings Law, it would be required to provide notice pursuant to §104 of that statute, conduct its meetings in public unless there is a basis for entry into executive session, and prepare minutes in accordance with §106 of the Open Meetings Law.

Enclosed is a copy of the Open Meetings Law for your review.

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:pb

cc: Town Board Enc.