Mr. Daniel R. Sanders
2128 Sterling Road
Sterling, NY 13156
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 Mr. Sanders:
As you are aware, I have received your letter of November 10.
According to your letter, the Sterling Town Board met in October with the Chairman of the Cayuga County Legislature, other legislators and the County Treasurer "to finalize an inter-municipal agreement covering a recently purchased piece of property." You added that the "public was not a party to those discussions even though the Board know of the meeting a couple of days in advance", and that each of the participants "is claiming ignorance of the law covering Open Meetings." The Town Board has apparently contended that it "did nothing wrong" because the Board "did not call the meeting." You also indicated by phone that the location of the property purchased by the County had long been known by the public.
You have questioned whether there was a "violation of the Open Meetings Law", whether an agreement can be vacated, and what procedure can be followed, particularly when one has a modest income.
In this regard, I offer the following comments.
First, it is emphasized that 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, the state's highest court, found that any gathering of a quorum of a public body for the purpose of conducting public business is a "meeting" that must be convened open to the public, whether or not there is an intent to take 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)].
I point out that the decision rendered by the Court of Appeals was precipitated by contentions made by public bodies that so-called "work sessions" and similar gatherings 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, if a majority of public body gathers to discuss District business, any such gathering, in my opinion, would constitute a "meeting" subject to the Open Meetings Law.
It is also noted that in a recent decision, it was held that a gathering of a quorum of a city council for the purpose of holding a "planned informal conference" involving a matter of public business constituted a meeting that fell within the scope of the Open Meetings Law, even though the Council was asked to attend by a city official who was not a member of the city council [Goodson-Todman v. Kingston Common Council, 153 AD 2d 103 (1990)]. Therefore, even though the gathering in question might have been held at the request of a person who is not a member of the Town Board. I believe that it was a meeting, for a quorum of the Board was present for the purpose of conducting public business.
Second, the Open Meetings Law requires that notice be given to the news media and posted prior to every meeting. Specifically, section 104 of that statute provides 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.
3. The public notice provided for by this section shall not be construed to require publication as a legal notice."
Stated differently, if a meeting is scheduled at least a week in advance, notice of the time and place must be given to the news media and to the public by means of posting in one or more designated public locations, not less than seventy-two hours prior to the meeting. If a meeting is scheduled less than a week an advance, again, notice of the time and place must be given to the news media and posted in the same manner as described above, "to the extent practicable", at a reasonable time prior to the meeting. Therefore, if, for example, there is a need to convene quickly, the notice requirements can generally be met by telephoning the local news media and by posting notice in one or more designated locations.
Third, and Open Meetings Law is based on a presumption of openness. Meetings of public bodies must be conducted open to the public, except to the extent that the subject matter may properly be considered during executive sessions. Moreover, the Open Meetings Law requires that a procedure be accomplished, during an open meeting, before a public body may enter into an executive session. Specifically, §105(1) states in relevant part that:
"Upon a majority vote of its total membership, taken in an open meeting pursuant to a motion identifying the general area or areas of the subject or subjects to be considered, a public body may conduct an executive session for the below enumerated purposes only..."
As such, a motion to conduct an executive session must include reference to the subject or subjects to be discussed and it must be carried by majority vote of a public body's total membership before such a session may validly be held. the ensuing provisions of §105(1) specify and limit the subjects that may appropriately be considered during an executive session to discuss the subject of its choice.
Since the matter involved a real property transaction, I emphasize that the exception concerning issues pertaining to such transactions is limited. Specifically, §105(1)(h) permits a public body to enter into executive session to discuss:
"The proposed acquisition, sale or lease of real property or the proposed acquisition of securities, or sale or exchange of securities held by such public body, but only when publicity would substantially affect the value thereof."
Therefore, a public body may discuss the proposed sale of real property, for example, behind closed doors, "only when publicity would substantially affect the value" of the property. Under the circumstances described in your correspondence, the location of the property in question and various issues relating to it were well known to the public. If that was so, I do not believe that publicity would have affected the value of the property or that §105(1)(h) could properly have been asserted as a basis for entry into executive session.
Lastly, with respect to invalidation of action and the enforcement of the Open Meetings Law, §107(1) states in part that:
"Any aggrieved person shall have standing to enforce the provisions of this article against public body by the commencement of a proceeding pursuant to article seventy-eight of the civil practice law and rules, and/or an action for declaratory judgement and injunctive relief. In any such action or proceeding, the court shall have the power, in its discretion, upon good cause shown, to declare any action or part thereof taken in violation of this article void in whole or in part."
The same provision also states that:
"An unintentional failure to fully comply with the notice provisions required by this article shall not alone be grounds for invalidating any action taken at a meeting of a public body."
A finding of a failure to comply with the notice requirements imposed by the Open Meetings Law, intentional or otherwise, would, in my opinion, be dependent upon the attendant facts. Further, I believe that action taken by a public body generally remains valid unless and until a court determines to the contrary.
It is also noted that §107(2) of the Open Meetings Law provides that:
"In any proceeding brought pursuant to this section, costs and reasonable attorney fees may be awarded by the court, in its discretion, to the successful party."
As such, the authority to award attorney's fees is discretionary rather than mandatory.
I hope that I have been of some assistance.
Robert J. Freeman
cc: Sterling Town Board
Chairman, Cayuga County Legislature