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December 12, 1994

 

Ms. Katherine L. Better
7 Sylvester Street
Kinderhook, NY 12106

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.

Dear Ms. Better:

I have received your letter of October 27 and appreciate your continuing interest in compliance with the Open Meetings Law. Please accept my apologies for the delay in response.

In your capacity as President of the Ichabod Crane School District Board of Education, you sought an opinion concerning an issue that continually arises in your District. As president, you wrote that you "have appointed standing committees composed of three or more Board members that address an entire area of work, i.e., Facilities Planning or Contract Negotiations." You added that the meetings of the Board and the standing committees "are convened and held in public." You wrote, however, that you recently "asked two board members to review several recommended financial policies and bring back their suggestions to the full Board." You "stated clearly that the two members had no authority", and that they were asked to study an issue in order to "facilitate the process more quickly." The Superintendent and a Board member questioned whether the members that you chose to carry out the task must do so in accordance with the Open Meetings Law.

In my opinion, while the Board and its standing committees constitute public bodies required to comply with the Open Meetings Law, I do not believe that the two members asked to carry out a certain duty, as you described the situation, would be subject to that statute. In this regard, I offer the following comments.

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 Those questions arose due to the definition of "public body" as it appeared in the Open Meetings Law as it was originally enacted.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 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 and subcommittees. 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" has since been 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, such a committee of a school board consisting of two or three of its members, would fall within the requirements of the Open Meetings Law, assuming that a committee discusses or conducts public business collectively as a body [see Syracuse United Neighbors v. City of Syracuse, 80 AD 2d 984 (1981)]. Further, as a general matter, I believe that a quorum consists of a majority of the total membership 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.

Further, 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 [see Glens Falls Newspapers, Inc. v. Solid Waste and Recycling Committee of the Warren County Board of Supervisors, 195 AD 2d 898 (1993)].

From my perspective, there is a distinction between the standing committees and the situation that precipitated your question. A standing committee is an "entity" that carries out a duty in a particular area, collectively, as a body. The situation that you described in my view does not involve an "entity" or the designation of members to carry out a continuing duty, as in the case of a standing committee. The two members were apparently not designated as a committee nor would they function in the manner of a committee. If my understanding of the facts is accurate, your designation of those persons in the manner described did not involve the creation of a public body subject to the Open Meetings Law.

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

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