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February 13, 1995

 

 

Hon. Jeanette Provenzano
Minority Leader
Ulster County Legislature
358 Joys Lane
Hurley, NY 12443

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 Legislator Provenzano:

I have received your letter of January 9, which reached this office on January 17. You requested that the Committee on Open Government conduct "an investigation into a meeting that was held at republican campaign headquarters on Thursday, January 5, 1995."

Specifically, you wrote that you were informed by:

"Mr. Charles Shaw, Executive Director of the RRA (Resource Recovery Agency for Ulster County), that this meeting was called by the Majority Leader of the Ulster County Legislature Philip Sinagra. A select few Ulster County Legislators were invited to this meeting; all of whom were Republican majority members.

"Mr. Shaw explained that he called Mr. Sinagra to inform him that his agency completed a study into the cost effectiveness of exporting Ulster County solid waste compared to building our own mega dump."

In this regard, it is emphasized at the outset that the Committee on Open Government has neither the authority nor the resources to conduct what might be characterized as an investigation. However, I offer the following comments concerning the situation that you described.

First, as you are likely aware, the Open Meetings Law applies to meetings of public bodies. Section 102(2) of that statute defines the phrase "public body" to mean:

"...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."

Based on the foregoing, the County Legislature would constitute a public body; similarly, the governing body of the RRA would also be a public body required to comply with the Open Meetings Law.

Second, a meeting subject to the Open Meetings Law occurs when a quorum of a public body, a majority of its total membership, convenes for the purpose of conducting public business. If there was no quorum of either the County Legislature or the governing body of the RRA, the Open Meetings Law would not have applied.

On the other hand, assuming that a quorum of the RRA board was present, I believe that the Open Meetings Law would have been applicable. 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 a public body gathers to discuss public business, any such gathering, in my opinion, would constitute a "meeting" subject to the Open Meetings Law.

It has also been held that joint meetings held by two or more public bodies are subject to the Open Meetings Law [Oneonta Star v. Board of Trustees of Oneonta School District, 66 AD 2d 51 (1979)], and 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 County Legislator, I believe that it was a meeting, assuming that a quorum of the RRA was present for the purpose of conducting public business.

Lastly, as you may be aware, the Open Meetings Law exempts political caucuses from its coverage. 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 public bodies other than legislative bodies. Therefore, again, if a majority of the RRA's governing body gathered to discuss public business, the Open Meetings Law, in my view, would have applied and the gathering would have constituted a "meeting". If no quorum was present, the Open Meetings Law would have been inapplicable.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Hon. Philip J. Sinagra, Majority Leader
Ulster County Resource Recovery Agency