Mr. David C. Woodward
140 Overlook Avenue
Peekskill, NY 10566
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. Woodward:
I have received your letter of February 2. In your capacity as a member of the Peekskill City School District Board of Education, you asked whether "proper public notice" was given concerning a certain meeting.
According to your letter, during an executive session on January 3, the Superintendent asked Board members if they could attend at meeting on January 5 at 5 p.m. "to adopt a new teacher contract, if the teachers approved on that date". An "official notice" was delivered to your home at approximately 11 a.m., apparently on January 5. You wrote that the Superintendent indicated that "the press and radio had been notified, they were sent a release, but they were not present". You also indicated that "[t]he public notice, on the official outdoor bulletin board did not carry out the date or hour of this special meeting" and that the "bulletin board still carried the date of the January 3rd meeting".
In this regard, the Committee on Open Government is authorized to offer opinions concerning the Open Meetings Law. While one of the issues may involve the adequacy of notice given to you as a member of the Board, that issue arises under the Education Law, which is beyond the jurisdiction of this office. The ensuing comments will be limited to the relevance of the Open Meetings Law on the situation that you described.
As you are aware, the Open Meetings Law requires that notice be given to the news media and posted prior to every meeting. Specifically, §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. Although, the Open Meetings Law does not make reference to "special" or "emergency" meetings, 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.
Although you wrote that the Superintendent "sent" notice to the news media, you did not specify how that was accomplished. If notice was sent by fax machine or delivered a reasonable time prior to the meeting, notice to the news media might satisfactorily have been accomplished. If notice was "sent" in some other way that did not provide the time and place of the meeting to the news media at a reasonable time prior to the meeting, that aspect of the Open Meetings Law might not have been adequately carried out. Further, the Open Meetings Law imposes a dual notice requirement. Notice must be given not only to the news media; it must be "conspicuously posted in one or more designated public locations" prior to every meeting.
The judicial interpretation of the Open Meetings Law suggests that the propriety of scheduling a meeting less than a week in advance is dependent upon the actual need to do so. As stated in Previdi v. Hirsch:
"Whether abbreviated notice is 'practicable' or 'reasonable' in a given case depends on the necessity for same. Here, respondents virtually concede a lack of urgency: They deny petitioner's characterization of the session as an 'emergency' and maintain nothing of substance was transacted at the meeting except to discuss the status of litigation and to authorize, pro forma, their insurance carrier's involvement in negotiations. It is manifest then that the executive session could easily have been scheduled for another date with only minimum delay. In that event respondents could even have provided the more extensive notice required by POL §104(1). Only respondent's choice in scheduling prevented this result.
"Moreover, given the short notice provided by respondents, it should have been apparent that the posting of a single notice in the School District offices would hardly serve to apprise the public that an executive session was being called...
"In White v. Battaglia, 79 A.D. 2d 880, 881, 434 N.Y.S.ed 637, lv. to app. den. 53 N.Y.2d 603, 439 N.Y.S.2d 1027, 421 N.E.2d 854, the Court condemned an almost identical method of notice as one at bar:
"Fay Powell, then president of the board, began contacting board members at 4:00 p.m. on June 27 to ask them to attend a meeting at 7:30 that evening at the central office, which was not the usual meeting date or place. The only notice given to the public was one typewritten announcement posted on the central office bulletin board...Special Term could find on this record that appellants violated the...Public Officers Law...in that notice was not given 'to the extent practicable, to the news media' nor was it 'conspicuously posted in one or more designated public locations' at a reasonable time 'prior thereto' (emphasis added)" [524 NYS 2d 643, 645 (1988)].
Based upon the foregoing, absent an emergency or urgency, the Court in Previdi suggested that it would be unreasonable to conduct meetings on short notice, unless there is some necessity to do so.
Lastly, with respect to the enforcement of the Open Meetings Law, §107(1) of the Law states in part that:
"Any aggrieved person shall have standing to enforce the provisions of this article against a 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 judgment 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."
However, the same provision states further 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."
As such, when a legal challenge is initiated relating to a failure to provide notice, a key issue is whether a failure to comply with the notice requirements imposed by the Open Meetings Law was "unintentional".
In an effort to enhance compliance with and understanding of the Open Meetings Law, a copy of this opinion will be forwarded to the Board.
I hope that I have been of some assistance.
Robert J. Freeman
cc: Board of Education