Mr. Michael J. O'Connor
Little & O'Connor
Attorneys At Law
Nineteen West Notre Street - PO Box 898
Glens Falls, NY 12801-0898
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. O'Connor:
I have received your letter of February 6 in which you sought my views concerning the propriety of action taken by the Glens Falls Industrial Development Agency ("the Agency").
According to your letter, when you recently appeared before the Agency, a question arose regarding the means by which it had adopted a new administrative fee schedule. You were informed that the Agency, "by written unanimous consent on January 18, 1996, adopted this new fee schedule...." It is your view that if an entity is able to "do anything of such substance by unanimous written consent, it would appear to completely frustrate the open meetings law."
From my perspective, the Agency cannot validly take action outside of a "meeting" held in accordance with the Open Meetings Law, during which a quorum is present and by means of an affirmative vote of a majority of its total membership. In this regard, I offer the following comments.
First, I agree with your contention that the governing body of the Agency is a public body required to comply with the Open Meetings Law. Section 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." As you suggested, pursuant to §856 of the General Municipal Law, an industrial development agency is a public benefit corporation, which, in turn, is a "public corporation" as that term is defined in §66 of the General Construction Law. Further, §923-b makes specific reference to the Glens Falls Industrial Development Agency as "a body corporate and politic."
Second, especially relevant in my view is §41 of the General Construction Law which provides guidance concerning quorum and voting requirements. Specifically, 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, such as the governing body of the Agency, 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 reasonable notice to all of the members.
Third, §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 assembly syn see 'SUMMON'" (Webster's Seventh New Collegiate Dictionary, Copyright 1965).
In view of the ordinary definition of "convene", I believe that a "convening" of a quorum requires the physical coming together of at least a majority of the total membership of a public body, that a majority of a public body would constitute a quorum, and that an affirmative majority of votes would be needed for a public body to take action or to carry out its duties.
Further, as you inferred, the Open Meetings Law is clearly intended to open the deliberative process to the public and provide the right to know how public bodies reach their decisions. As stated in §100 of the Law, its Legislative Declaration:
"It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy. The people must be able to remain informed if they are to retain control over those who are their public servants. It is the only climate under which the commonweal will prosper and enable the governmental process to operate for the benefit of those who created it."
Moreover, the Open Meetings Law has been broadly interpreted by the courts. In a landmark decision rendered in 1978, the Court of Appeals found that any gathering of a quorum of a public body for the purpose of conducting public business is a "meeting" that must be convened open to the public, whether or not there is an intent to take action and regardless of the manner in which a gathering may be characterized [see Orange County Publications v. Council of the City of Newburgh, 60 AD 2d 409, aff'd 45 NY 2d 947 (1978)].
If action could validly be taken by "written consent", outside the context of a meeting held in accordance with the Open Meetings Law, the intent of that statute could be circumvented.
In sum, I believe that the Agency may take action only at a meeting during which a quorum is physically present. Consequently, if the action to which you referred is challenged, it is my view that a court would determine that no action validly was taken and that the purported action is, in essence, a nullity.
In an effort to enhance compliance with an understanding of the Open Meetings Law, a copy of this opinion will be forwarded to the Agency. I hope that I have been of some assistance.
Robert J. Freeman
cc: Glens Falls Industrial Development Agency