July 13, 1994
Hon. Barbara Johnson
114 Old Country Road
Mineola, NY 11501
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 Councilwoman Johnson:
I have received your letter of July 6, as well as the correspondence relating to it.
In your capacity as a member of the North Hempstead Town Board, you indicated that the Board consists of members of a single political party, and in a memorandum of June 30, you criticized the Board concerning its practice of holding closed meetings to discuss "calendar items". You also disagreed with the Town Attorney's contention that the meetings could legally be closed on the ground that they constitute political caucuses exempted from the Open Meetings Law. In the memorandum, you wrote that:
"...the meetings in question are intended not to discuss political matters, but rather to address those calendar items that are expected to arise at subsequent Town Board meetings and where Public Hearings have been scheduled to gather evidentiary facts upon which decisions are to be subsequently made by members of the Board. As you are all well aware, in addition to the discussion of calendar items, straw votes are taken at these meetings on such issues as placement of group homes, the abolition of garbage Commissioners and other matters of public policy. The fact that these votes are not binding is of no importance...
"...the assertion that these meetings are 'informal', as mentioned in Supervisor Newburger's recent memorandum to me, is simply incorrect. These meetings are scheduled every week at 5:00 p.m. on Mondays and an agenda is provided, whether orally or in writing. Simply calling a meeting 'informal' doesn't make it so. Scheduling such meetings with the purpose in mind of discussing and, ultimately, deciding public policy matters and determining the Board's voting pattern prior to the public meeting clearly make these 'informal' meetings formal indeed!"
You also referred to the decision rendered in Buffalo News v. Buffalo Common Council [585 NYS 2d 275 (1992)], in which the court considered the propriety of closed political caucuses held by an entity whose members represented a single political party.
The Town Attorney responded to your commentary on July 7 and continued to express the view that the closed political caucuses could be validly held. He wrote that the Court in Buffalo News "merely held that it was not appropriate for members of the legislative body to use a private meeting to 'adopt' a plan to address the municipality's deficit" (emphasis by the Town Attorney). He also wrote that "[a] meeting at which [he] give[s] [his] view of legal issues before the Town Board is exempt from the requirements of the Open Meetings Law" on the basis of the attorney-client privilege.
You have sought an advisory opinion on the matter. In this regard, I offer the following comments.
First, 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 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 Town business, any such gathering, in my opinion, would constitute a "meeting" subject to the Open Meetings Law, unless the meeting or a portion thereof is exempt from the Law.
Second, as you are likely aware, the Open Meetings Law provides two vehicles under which a public body may meet in private. One is the executive session, a portion of an open meeting that may be closed to the public in accordance with §105 of the Open Meetings Law. The other arises under §108 of the Open Meetings Law, which contains three exemptions from the Law. When a discussion falls within the scope of an exemption, the provisions of the Open Meetings Law do not apply.
Of relevance to the assertion of the attorney-client privilege is §108(3), which exempts from the Open Meetings Law:
"...any matter made confidential by federal or state law."
When an attorney-client relationship has been invoked, the communications made pursuant to that relationship are considered confidential under §4503 of the Civil Practice Law and Rules. Consequently, if an attorney and client establish a privileged relationship, the communications made pursuant to that relationship would in my view be confidential under state law and, therefore, exempt from the Open Meetings Law.
In terms of background, it has long been held that a municipal board may establish a privileged relationship with its attorney [People ex rel. Updyke v. Gilon, 9 NYS 243 (1989); Pennock v. Lane, 231 NYS 2d 897, 898 (1962)]. However, such a relationship is in my opinion operable only when a municipal board or official seeks the legal advice of an attorney acting in his or her capacity as an attorney, and where there is no waiver of the privilege by the client. Further, after a public body has sought and obtained legal advice from its attorney and has started to discuss and deliberate a matter of public business, I believe that the attorney-client privilege would end and that the Open Meetings Law would apply.
With regard to political caucuses, since the Open Meetings Law became effective in 1977, it has contained an exemption concerning political committees, conferences and caucuses. Again, when a matter is exempted from the Open Meetings Law, the provisions of that statute do not apply. Questions concerning the scope of the so-called "political caucus" exemption have continually arisen, and until 1985, judicial decisions indicated that the exemption pertained only to discussions of political party business. Concurrently, in those decisions, it was held that when a majority of a legislative body met to discuss public business, such a gathering constituted a meeting subject to the Open Meetings Law, even if those in attendance represented a single political party [see e.g., Sciolino v. Ryan, 81 AD 2d 475 (1981)].
Those decisions, however, were essentially reversed by the enactment of an amendment to the Open Meetings Law in 1985. Section 108(2)(a) of the Law now states that exempted from its provisions are: "deliberations of political committees, conferences and caucuses." Further, §108(2)(b) states 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 of the same political party, without regard to (i) the subject matter under discussion, including discussions of public business, (ii) the majority or minority status of such political committees, conferences and caucuses or (iii) whether such political committees, conferences and caucuses invite staff or guests to participate in their deliberations..."
Therefore, in general, either the majority or minority party members of a legislative body may conduct closed political caucuses, either during or separate from meetings of the public body.
Many local legislative bodies, recognizing the potential effects of the 1985 amendment, have taken action to reject their authority to hold closed caucuses and to continue to conduct their business open to the public as they had prior to the amendment.
Moreover, as indicated by Buffalo News, there have been recent developments in case law regarding political caucuses that indicate that the exemption concerning political caucuses has in some instances been asserted improperly as a means of excluding the public from gatherings that have little or no relationship to political party activities or partisan political issues.
One of the decisions, Humphrey v. Posluszny [175 AD 2d 587 (1991)], involved a private meeting held by members of a village board of trustees with representatives of the village police benevolent association. Although the board characterized the gathering as a political caucus outside the scope of the Open Meetings Law, the Appellate Division, Fourth Department, held to the contrary. In a brief discussion of the caucus exemption and its intent, the decision states that:
"The Legislature found that the public interest was promoted by 'private, candid exchange of ideas and points of view among members of each political party concerning the public business to come before legislative bodies' (Legislative Intent of L.1985,ch.136,§1). Nonetheless, what occurred at the meeting at issue went beyond a candid discussion, permissible at an exempt caucus, and amounted to the conduct of public business, in violation of Public Officers Law §103(a) (see, Public Officers Law §100. Accordingly, we declare that the aforesaid meeting was held in violation of the Open Meetings Law" (id., 588).
The Court did not expand upon when or how a line might be drawn between a "candid discussion" among political party members and "the conduct of public business." Although the decision was appealed, the appeal was withdrawn, because the membership on the board changed.
As you know, Buffalo News involved a political caucus held by a public body consisting solely of members of one political party. As in Humphrey, the court concentrated on the expressed legislative intent regarding the exemption for political caucuses, as well as the statement of intent appearing in §100 of the Open Meetings Law, stating that:
"In a divided legislature where a meeting is restricted to the attendance of members of one political party, regardless of quorum and majority status, perhaps by that very restriction it would be fair to assume the meeting constitutes a political caucus. However, such a conclusion cannot be drawn if the entire legislature is of one party and the stated purpose is to adopt a proposed plan to address the deficit before going public. In view of the overall importance of Article 7, any exemption must be narrowly construed so that it will not render Section 100 meaningless. Therefore, the meeting of February 8, 1992 was in violation of Article 7 of the Open Meetings Law... "When dealing with a Legislature comprised of only one political party, it must be left to the sound discretion of honorable legislators to clearly announce the intent and purpose of future meetings and open the same accordingly consistent with the overall intent of Public Officers Law Article 7" (id., 278).
In my opinion, the Town Attorney's interpretation of Buffalo News is unduly narrow. He apparently chose to focus on the term "adopt" by suggesting that the gatherings in question are held to discuss, not to adopt, and that, therefore, they may be closed on the ground that they constitute political caucuses.
The court, however, continually referred to the term "meeting" and the deliberative process, not merely the act of "adopting" or taking action. In fact, the language of the decision in many ways is analogous to that of the Appellate Division in Orange County Publications, supra. Specifically, it was stated in Buffalo News that:
"The Court of Appeals in Orange County (supra) also declared: 'The purpose and intention of the State Legislature in the present context are interpreted as expressed in the language of the statute and its preamble.' The legislative intent, therefore, expressed in Section 108, must be read in conjunction with the Declaration of Legislative Policy of Article 7 as set forth in its preamble, Section 100.
"It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy. The people must be able to remain informed if they are to retain control over those who are their public servants. It is the only climate under which the commonwealth will prosper and enable the governmental process to operate for the benefit of those who created it.
"A literal reading of Section 108, as urged by Respondent, could effectively preclude the public from any participation whatsoever in a government which is entirely controlled by one political party. Every public meeting dealing with sensitive or controversial issues could be preceded by a 'political caucus' which would have no public input, and the public meetings decisions on such issues would be a mere formality. Such interpretation would negate the Legislature's declaration in Section 100. The Legislature could not have contemplated such a result by amending Section 108 and at the same time preserving Section 100" (id., 277).
Based on the foregoing, I believe that the Town Attorney's interpretation of Buffalo News is inconsistent with its language and the overall thrust of the decision. To reiterate a statement in the decision: "any exemption must be narrowly construed so that it will not render Section 100 meaningless" (id., 278).
I hope that I have been of some assistance.
Robert J. Freeman
cc: Town Board
Ivan Kline, Town Attorney