Ms. Fran Knapp
5 Barnard Avenue
Poughkeepsie, NY 12601
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. Knapp:
I have received your letter of November 13. In your capacity as a member of the Dutchess County Legislature, you have sought an advisory opinion concerning political caucuses "conducted during committee meetings". Following your exclusion from caucuses held by members of a committee of the Legislature, the Chair said that the caucuses "are part of the process" and are held because "real decisions had to be made."
In this regard, I offer the following comments.
First, as you may be aware, the Open Meetings Law exempts from its coverage political caucuses. However, based upon the language of the Law, I do not believe that the exemption would apply to a committee. Specifically, §108(2) of the Open Meetings Law exempts "deliberations of political committees, conferences and caucuses" from the Law, and paragraph (b) of that provision states in relevant part that:
"for purposes of this section, the deliberations of political committees, conferences and caucuses means a private meeting of members of the senate or assembly of the state of New York or the legislative body of a county, city, town or village, who are members or adherents to the same political party..."
In my view, the exemption concerning political caucuses applies to "the legislative body" of a county, i.e., the County Legislature. The language of §108 does not refer to a committee of a legislative body, such as the committee to which you referred in your letter.
Second, the Open Meetings Law pertains to meetings of public bodies, and when a committee consists solely of members of a public body, such as a committee of a county legislature, I believe that the Open Meetings Law is applicable. By way of background, when the Open Meetings Law went into effect in 1977, questions consistently arose with respect to the status of committees, subcommittees and similar bodies that had no capacity to take final action, but rather merely the authority to advise. Those questions arose due to the definition of "public body" as it appeared in the Open Meetings Law as it was originally enacted. Perhaps the leading case on the subject also involved a situation in which a governing body, a school board, designated committees consisting of less than a majority of the total membership of the board. In Daily Gazette Co., Inc. v. North Colonie Board of Education [67 AD 2d 803 (1978)], it was held that those advisory committees, which had no capacity to take final action, fell outside the scope of the definition of "public body".
Nevertheless, prior to its passage, the bill that became the Open Meetings Law was debated on the floor of the Assembly. During that debate, questions were raised regarding the status of "committees, subcommittees and other subgroups." In response to those questions, the sponsor stated that it was his intent that such entities be included within the scope of the definition of "public body" (see Transcript of Assembly proceedings, May 20, 1976, pp. 6268-6270).
Due to the determination rendered in Daily Gazette, supra, which was in apparent conflict with the stated intent of the sponsor of the legislation, a series of amendments to the Open Meetings Law was enacted in 1979 and became effective on October 1 of that year. Among the changes was a redefinition of the term "public body". "Public body" is now defined in §102(2) 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 made reference to entities that "transact" public business, the current definition makes reference to entities that "conduct" public business. Moreover, the definition makes specific reference to "committees, subcommittees and similar bodies" of a public body.
In view of the amendments to 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 when a majority of a committee meets to discuss or conduct public business collectively as a body [see Syracuse United Neighbors v. City of Syracuse, 80 AD 2d 984 (1981); Glens Falls Newspapers v. Solid Waste and Recycling Committee of Warren County Board of Supervisors, 601 NYS 2d 29, ___ AD 2d___, July 29, 1993]. Further, as a general matter, I believe that a quorum consists of a majority of the total members of a body (see e.g., General Construction Law, §41). As such, in the case of a committee consisting of three, for example, a quorum would be two.
Lastly, when a committee is subject to the Open Meetings Law, I believe that it has the same obligations regarding notice and openness, for example, as well as the same authority to conduct executive sessions, as a governing body.
I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.
Robert J. Freeman