Mr. Gary Sazer
Meltzer, Lippe, Goldstein, Wolf, Schlissel & Sazer, P.C.
90 Willis Avenue
Mineola, NY 11501
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. Sazer:
I have received your letter of March 9 in which you sought an advisory opinion concerning the Open Meetings Law.
In your capacity as counsel to Douglas Koch, D.V.M., you wrote that Dr. Koch serves as a member of the Board of Directors of the New York State Thoroughbred Breeding and Development Fund Corporation ("the Fund"). The Fund is described in §245 of the Racing, Pari-Mutuel Wagering and Breeding Law as "a body corporate and politic constituting a public benefit corporation." That statute also prescribes the membership of its Board of Directors, one of whom is the Commissioner of Agriculture and Markets, and states that "a majority of the whole number of directors shall constitute a quorum", and that the Fund cannot transact business or otherwise carry out its powers "except pursuant to a favorable vote of at least a majority of the directors present at a meeting at which a quorum is in attendance."
Notwithstanding the foregoing, you indicated that:
"It is the opinion of the Fund, supported by Fund Counsel its Executive Director that:
(i) the Commissioner can delegate by proxy his duties as a Fund Director;
(ii) that the Fund is not subject to the Open Meetings Laws (McKinney's Public Officers Law, Article 7, as amended)."
You have sought my opinion concerning those contentions. In brief, for reasons with which you are familiar based on your review of opinions previously rendered, I do not believe that the Fund's contentions are legally supportable. However, I offer the following comments.
First, the Open Meetings Law is applicable to public bodies, and §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."
In conjunction with the foregoing and §§244 to 250 of the Racing, Pari-Mutuel Wagering and Breeding Law, it is clear in my opinion that the Fund's Board of Directors is an entity consisting of more than two members that conducts public business and performs a governmental function for a public corporation, and, therefore, constitutes a "public body" required to comply with the Open Meetings Law. As you pointed out in your letter, §66(1) of the General Construction Law defines "public corporation" to include a "public benefit corporation", such as the Fund.
Second, with respect to the ability of a Director to delegate his or her authority by means of a proxy, I note by way of background that §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 Fund. While nothing in the Open Meetings Law refers to the capacity of a member to delegate his or her authority by means of a proxy, it has consistently been advised that a member of a public body cannot participate unless he or she is physically present at a meeting of the body.
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."
Nothing in the Open Meetings Law or the statutes that pertain directly to the Fund refers to the capacity of a member to participate through a delegate or vote by "proxy". To reiterate, I do not believe that a member of a public body can cast a vote unless the member is physically present at a meeting of the body. Absent specific statutory authority to do so, I do not believe that members of the Board of Directors, ex officio or otherwise, may delegate their authority to serve on the Board or vote at meetings on their behalf to their representatives. The absence of such authority, is, in my view, significant, for there are situations in which members of public bodies have the ability to delegate their powers to others. When such authority exists, however, it exists by statute. For instance, §89(1) of the Public Officers Law pertains to the Committee on Open Government and specifies that certain members who serve on the Committee ex officio may designate "delegates" to act in their stead. The remaining members have no authority to do so.
I hope that I have been of some assistance.
Robert J. Freeman
cc: Board of Directors