Hon. June L. Smith
Town of Mendon
16 West Main Street
Honeoye Falls, NY 14472-1199
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. Smith:
As you are aware, I have received your letter of January 20. You asked that I review a resolution before the Mendon Town Board concerning minutes of its meetings. In brief, the resolution would, if adopted, determine the form, content and availability of minutes that you prepare as Town Clerk.
In my opinion, as clerk, you have the responsibility and the authority to prepare minutes and to ensure their accuracy. While a town board may have a variety of powers, I do not believe that the alteration of minutes or specific direction regarding their content or format would be among them. From my perspective, two statutes are relevant to the matter.
Perhaps most importantly, §30(1) of the Town Law states in relevant part that the town clerk "shall attend all meetings of the town board, act as clerk thereof, and keep a complete and accurate records of the proceedings of each meeting..." Second, the Open Meetings Law in §106 provides that:
"1. Minutes shall be taken at all open meetings of a public body which shall consist of a record or summary of all motions, proposals, resolutions and any other matter formally voted upon and the vote thereon.
2. Minutes shall be taken at executive sessions of any action that is taken by formal vote which shall consist of a record or summary of the final determination of such action, and the date and vote thereon; provided, however, that such summary need not include any matter which is not required to be made public by the freedom of information law as added by article six of this chapter.
3. Minutes of meetings of all public bodies shall be available to the public in accordance with the provisions of the freedom of information law within two weeks from the date of such meetings except that minutes taken pursuant to subdivision two hereof shall be available to the public within one week from the date of the executive session."
Based on the foregoing, minutes need not consist of a verbatim account of everything that was said; on the contrary, so long as the minutes include the kinds of information described in §106, I believe that they would be appropriate and meet legal requirements. Certainly if a clerk wants to include more information than is required by law, he or she may do so. Nevertheless, I do not believe that a town board could require that a town clerk prepare verbatim minutes.
In good faith, I point out that in an opinion issued by the State Comptroller, it was advised that when a member of a board requests that his statement be entered into the minutes, the board must determine, under its rules of procedure, whether the clerk should record the statement in writing, which would then be entered as part of the minutes (1980 Op.St.Comp. File #82-181). Despite that opinion, it is unclear from my perspective whether a board has the authority to compel a clerk to include information in minutes beyond the requirements of the Open Meetings Law.
Although as a matter of practice, policy or tradition, many public bodies approve minutes of their meetings, there is nothing in the Open Meetings Law or any other statute of which I am aware that requires that minutes be approved. In another opinion of the State Comptroller, it was found that there is no statutory requirement that a town board approve minutes of a meeting, but that it was "advisable" that a motion to approve minutes be made after the members have had an opportunity to review the minutes (1954 Ops.St.Compt. File #6609). While it may be "advisable" if not proper for a board to review minutes, due to the clear authority conferred upon town clerks under §30 of the Town Law, I do not believe that a town board can require that minutes be approved prior to disclosure.
Similarly, I do not believe that a board could require that disclosure of minutes be delayed in a manner inconsistent wit the Open Meetings Law. In the event that minutes have not been reviewed or approved, to comply with the Open Meetings Law, it has consistently been advised that minutes be prepared and made available within two weeks, and that they be marked "unapproved", "draft" or "preliminary", for example. By so doing within the requisite time limitations, the public can generally know what transpired at a meeting; concurrently, the public is effectively notified that the minutes are subject to change.
In sum, the responsibility to prepare minutes is conferred upon town clerks by §30 of the Town Law. In my opinion, neither a town supervisor, a member of the board, nor the board itself may require that minutes be prepared verbatim, altered, maintained in particular format, or disclosed only after they have been approved.
I hope that I have been of some assistance.
Robert J. Freeman