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January 13, 1995

 

 

Hon. Sean Treacy
Village of North Tarrytown
28 Beekman Avenue
North Tarrytown, NY 10591

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 Mayor Treacy:

I have received your letter of November 28 and the materials attached to it. Please accept my apologies for the delay in response.

According to your letter, notice of a public hearing to be held by the Board of Trustees of the Village of North Tarrytown on October 18 at the Philipse Manor Restoration was properly sent to the news media and posted, and an affidavit of publication prepared by the Gannett Suburban Newspapers indicates that notice was published on October 5. Following the publication of notice, the Board of Trustees, adopted a resolution "calling for all future board meetings to be held exclusively at Village Hall." While that issue was being considered, the Village Attorney advised that notice of the hearing "had already been filed with the newspaper and time did not permit the renoticing of the meeting." On October 18, several Village officials, two trustees and yourself convened the hearing at the time and location specified in the notice. The four remaining trustees held a meeting at exactly the same time in Village Hall without ever saying "a word to [you] that they would be meeting at a different location other than the Restoration." You have asked whether the meeting at Village Hall was validly held.

In this regard, I offer the following comments.

First, I point out that the Open Meetings Law does not necessarily apply to a hearing, and that there is a distinction between a meeting and a hearing. A meeting generally involves a situation in which a quorum of a public body convenes for the purpose of deliberating as a body and/or to take action. A public hearing, on the other hand, generally pertains to a situation in which the public is given an opportunity to express its views concerning a particular issue, such a zoning or land use matter, a local law or a budget proposal. Further, the notice requirements pertaining to meetings found in §104 of the Open Meetings Law are separate from those pertaining to hearings. In this instance, it is clear that a legal notice was given with respect to a hearing involving a proposed amendment to the Village Code.

Second, in order to constitute a valid meeting, I believe that all of the members of a public body must be given reasonable notice of a meeting. Relevant in my view is §41 of the General Construction Law which provides guidance concerning quorum and voting requirements. The cited provision states that:

"Whenever three of more public officers are given any power or authority, or three or more persons are charged with any public duty to be performed or exercised by them jointly or as a board or similar body, a majority of the whole number of such persons or officers, at a meeting duly held at a time fixed by law, or by any by-law duly adopted by such board of body, or at any duly adjourned meeting of such meeting, or at any meeting duly held upon reasonable notice to all of them, shall constitute a quorum and not less than a majority of the whole number may perform and exercise such power, authority or duty. For the purpose of this provision the words 'whole number' shall be construed to mean the total number which the board, commission, body or other group of persons or officers would have were there no vacancies and were none of the persons or officers disqualified from acting."

Based upon the language quoted above, a public body, such as a village board of trustees, cannot carry out its powers or duties except by means of an affirmative vote of a majority of its total membership taken at a meeting duly held upon reasonable notice to all of the members. Therefore, if, for example, four of seven members of a public body meet without informing the other three, even though the four represent a majority, I do not believe that they would constitute a quorum or that they could vote or act as or on behalf of the body as a whole; unless all of the members of the body are given reasonable notice of a meeting, the body in my opinion is incapable of performing or exercising its power, authority or duty. If indeed no notice was given to you or other members of the Board, the purported meeting would, in my opinion, have been a nullity.

A remaining issue involves the site of meetings and access to physically handicapped persons. Here I note that §103(b) of the Open Meetings Law states that:

"Public bodies shall make or cause to be made all reasonable efforts to ensure that meetings are held in facilities that permit barrier-free physical access to the physically handicapped, as defined in subdivision five of section fifty or the public buildings law."

The same direction appears in §74-a of the Public Officers Law regarding public hearings. Based upon those provisions, there is no obligation upon a public body to construct a new facility or to renovate an existing facility to permit barrier-free access to physically handicapped persons. However, I believe that the law does impose a responsibility upon a public body to make "all reasonable efforts" to ensure that meetings and hearings are held in facilities that permit barrier-free access to physically handicapped persons. Therefore, if, for example, the Board has the capacity to hold its meetings in a facility that is accessible to handicapped persons, I believe that the meetings should be held in the location that is most likely to accommodate the needs of those persons.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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