Mr. John C. Crary
Deputy General Counsel
NYS Dept. of Public Service
Three Empire State Plaza
Albany, NY 12223-1350
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. Crary:
I have received your letter in which you requested an advisory opinion under the Open Meetings Law.
The issue involves "the legality of conducting decisional meetings of the Commission in the City of Albany under circumstances in which four members of the Commission are present in Albany, but one member of the Commission desires to participate in the discussion and vote on matters considered at the meeting by means of a two-way telephone link from New York City" (emphasis yours). You added that the site from which the Commission seeks to participate is open to the public and that any discussion or vote could be heard by means of "a speakerphone hook-up by all persons present at both locations." You also specified that the Public Service Commission consists of five members, that a quorum is three, and that it is a public body subject to the Open Meetings Law.
In this regard, from my perspective, a gathering of the four Commissioners for the purpose of discussing public business and perhaps taking action at one location would clearly constitute a meeting that falls within the coverage of the Open Meetings Law. However, I do not believe that a Commissioner who seeks to participate by phone in the manner that you described could validly vote or be counted for purposes of a quorum.
As you are aware, §102(1) of the Open Meetings Law defines the term "meeting" to mean "the official convening of a public body for the purpose of conducting public business". Based upon an ordinary dictionary definition of "convene", that term means:
"1. to summon before a tribunal;
2. to cause to assemble syn see 'SUMMON'" (Webster's Seventh New Collegiate Dictionary, Copyright 1965).
In view of that definition and others, I believe that a meeting, i.e., the "convening" of a public body, involves the physical coming together of at least a majority of the total membership of the Commission. While nothing in the Open Meetings Law refers to the capacity of a member to participate or vote at a remote location by telephone, it has consistently been advised that a member of a public body cannot cast a vote unless he or she is physically present at a meeting of the body.
The Open Meetings Law does not preclude members of a public body from conferring individually or by telephone. However, a series of telephone calls among the members which results in a decision or a meeting held by means of a telephone conference would in my opinion be inconsistent with law. Similarly, I believe that the absence of a member from a meeting, a physical convening of a majority of a public body's membership, precludes that person from voting. In short, the absent person is not part of the "convening."
It is noted that the definition of "public body" [see Open Meetings Law, §102(2)] refers to entities that are required to conduct public business by means of a quorum. In this regard, the term "quorum" is defined in §41 of the General Construction Law, which has been in effect since 1909. 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 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 reasonably notice to all of the members. As such, it is my view that a public body has the capacity to carry out its duties only at meetings during which a majority of the total membership has convened.
In conjunction with the situation that you described, I believe that the Commission could choose to enable the absent member to participate by phone. Despite his participation, however, in view of quorum requirements and the definitions of "meeting" and "convene", he could not in my opinion vote or otherwise be counted as a member for the purpose of §41 of the General Construction Law or the Open Meetings Law. Therefore, if, for example, the vote of those present at the meeting in Albany is 2 to 2, the Commissioner who may be participating by phone at a remote location could not, in my opinion, validly cast a vote to break the tie or in any instance in which the Commission votes.
I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.
Robert J. Freeman