Hon. Stephen T. Auburn
38 Maplewood Avenue
Honeoye Falls, NY 14472
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, unless otherwise indicated.
Dear Mr. Auburn:
I have received your letter of March 14, which reached this office on March 20. In your capacity as a member of the Mendon Town Board, you asked that I review my letter to the Town Clerk, June Smith, concerning what was then a proposed resolution focusing on the contents of Town Board meetings. You enclosed a copy of the resolution to amend the Board's Rules of Procedure that was later approved.
In order to provide background concerning the resolution, you referred to minutes in which some statements were "nearly verbatim", while others were briefly summarized, and you suggested that the length of the statements appears to have been based upon political party affiliation. You also stressed that the Board's resolution was not "politically motivated" but rather is based on the belief that minutes of meetings "should be balanced in their treatment of statements by the public and Town Board members and the political affiliation of the speaker shouldn't be a factor in how their statements are reflected".
I have read the resolution and reviewed the opinion addressed to the Clerk. In addition, in an effort to gain perspective, the matter has been discussed with others. While several statutes may be relevant to an analysis of the matter, I know of no judicial decision that deals squarely with the relationship between a town clerk and a town board concerning the contents of minutes. I recognize that the Comptroller has prepared several opinions over the course of years that touch upon the issue. I have prepared many opinions as well. What a court would determine is, in my opinion, conjectural and would likely be dependent on attendant facts.
As I view the situation, four provisions are relevant. First, §106 of the Open Meetings Law deals with minutes and was quoted in full in the opinion addressed to Ms. Smith. Under that statute, it is clear that minutes need not consist of a verbatim account of what is said. Rather, at a minimum, minutes must consist of a record or summary of motions, proposals, resolutions, action taken and the vote of each member. Second, subdivision (1) of §30 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 record of the proceedings of each meeting". Third, subdivision (1) of §30 of the Town Law provides that the clerk "shall have such additional powers and perform such additional duties as are or hereafter may be conferred or imposed upon him by law, and such further duties as the town board may determine, not inconsistent with law". And fourth, §63 of the Town Law states in part that a town board "may determine the rules of its procedure".
In my opinion, inherent in each of the provisions cited is an intent that they be carried out reasonably, fairly, with consistency, and that minutes be accurate. If indeed the Town Clerk prepares an essentially verbatim account of statements made by members of a particular political party and merely summarizes the statements of others, minutes of that nature would, in my view, be inconsistently and unfairly prepared, and I believe that such practice would merit correction. While the Town Board's resolution may be intended to ensure that appropriate minutes are prepared, there is no guarantee of the result. Similarly, although the opinions of the Comptroller cited in the "WHEREAS" clauses of the resolution and which serve as the basis for the resolution ostensibly appear to be reasonable, they could be implemented in ways that are unreasonable.
The first clause states that "what questions or statements are included [in the minutes] is in the discretion of the Town Board". What if the Board has a lop-sided majority of political party membership, or, irrespective of party membership, it includes a gadfly with whom the other members disagree, and the Board by a vote 4 to 1 chooses to exclude the questions or statements of the minority party member or gadfly? While there may be no intent to do so, the Board's descretionary authority could lead to unfair or inconsistent results.
The second states that "under its power to determine its rules of procedure, the Town Board may require some or all of particular discussions to be recorded verbatim". In the same hypothetical situation as posited in relation to the first "WHEREAS", the result could be the same as the situation that you are trying to correct. I note that part 2 of the new rule states that a majority of the Town Board could require that a question or statement by a member of the public or the Board "be included in the minutes verbatim". While your intent may be to be reasonable, the Board could, on the basis of partisan politics, or perhaps favor or disfavor with a person or board member, pick and choose which statements should be recorded verbatim. I am not suggesting that the Mendon Town Board would necessarily act in a partisan or personal manner; nevertheless, having dealt with the Open Meetings Law since its enactment, I can report that other boards have done so.
The third "WHEREAS" enables the Board to require that minutes be submitted to the Board "for correction of errors and omissions and approval". The intent is obvious -- that minutes be accurate. Nevertheless, numerous situations have arisen in which public bodies and their members have sought to amend minutes in a way in which their contents would be unbalanced or would not reflect what actually occurred. Again, I am not suggesting that the Board in this instance intends to act unreasonably; I am suggesting, however, that even a rule that is most reasonable on its face may be subject to interpretation or abuse in ways that may be unintended by those who adopted it.
I am not sure that perfect rules could be drafted to deal with minutes and the relationship between a town board and a town clerk. Even rules that appear to be most reasonable may be subject to a variety of interpretations or to methods of implementation inconsistent with their original intent. The Board's rules regarding minutes may be fully appropriate if they are carried out in a manner consistent with their apparent intent; on the other hand, if that does not occur, it is possible, in my view, that they could be found to be invalid. I believe that the suggestion offered earlier should serve as the general guide for both the Board and the Clerk, that the minutes be prepared in a manner that is reasonable, fair, consistent and accurate.
I recognize that the foregoing may not provide a solution to the matter. It is my hope, however, that my comments will be considered to be helpful and constructive.
Robert J. Freeman
cc: June L. Smith, Town Clerk