March 15, 1996
Mr. Terry W. Kuehn
7117 Mavis Drive
Wheatfield, NY 14120
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. Kuehn:
I have received your recent correspondence, which reached this office on March 3. You have sought my views concerning two incidents that you believe "may be violations of the Open Meetings Law."
The first pertains to a meeting held by the Wheatfield Town Board on February 12. You wrote that, prior to the meeting, the Supervisor indicated that the meeting of that evening would serve as "an opportunity for town residents to express their views on the continuation of the sewering of [y]our town." However, when you attempted to share your knowledge with those in attendance, the Supervisor "established rules that did not allow input from anyone other than taxpayers who had not yet received sewers."
In this regard, although the Open Meetings Law is only indirectly related to the matter, I offer the following comments.
First, while the Open Meetings Law clearly provides any member of the public with the right to attend meetings of public bodies (i.e., town boards), that statute is silent with respect to the ability of the public to speak or otherwise participate. Therefore, if a public body does not want to permit the public to speak, it is not obliged to confer such a privilege. However, public bodies may choose to permit public participation and many do so.
Second, when a public body chooses to authorize public participation, it has been advised that it should do so in accordance with reasonable rules that treat members of the public equally. From my perspective, a rule that allows certain members of the public to speak while prohibiting others from speaking at all would be unreasonable and subject to invalidation.
And third, I do not believe that the Supervisor, acting unilaterally, had the authority to establish or change a rule. Here I direct your attention to §63 of the Town Law. While that statute provides that the supervisor "shall preside at meetings of the town board", it also states that "Every act, motion or resolution shall require for its adoption the affirmative vote of a majority of the members of the town board", and that "The board may determine the rules of its procedure." Therefore, based on §63, I believe that the Town Board as a body, not the Supervisor acting alone, would be empowered to establish rules regarding public participation.
The second incident pertains to a "special or unscheduled meeting." While the meeting in question "was advertised more than seventy-two hours prior to the actual meeting in one local publication, you "question its legality given the fact that the Town has clearly established three separate local news publications as their official publication."
The focal point of the matter involves the extent to which the Town Board complied with §104 of the Open Meetings Law. That provision requires that notice of the time and place of every meeting of a public body be given to the news media and posted. Specifically, §104 states 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."
Based upon the foregoing, it is clear that notice must be posted and given to the news media prior to every meeting. However, §104 does not specify which news media organizations must be given notice. In many instances, there are may be several news media organizations, i.e., newspapers, radio and television stations, that operate in the vicinity of a public body. So long as notice of a meeting is given to at least one news media organization prior to a meeting, I believe that a public body would be acting in compliance with the requirement that notice be given to the news media.
In my opinion, every law, including the Open Meetings Law, should be implemented in a manner that gives reasonable effect to the intent of the law. It would be unreasonable in my view for the Town Board to transmit notice to the Washington Post or a New York City radio or television station, for those outlets would not likely reach residents of the Town, nor would they assign a reporter to attend a meeting of the Board. If notice is posted and given to a newspaper that has a significant circulation in the Town or to a radio station situated in or near the Town, I believe that the Board would be in compliance with the Open Meetings Law. In short, there is nothing in the Open Meetings Law that would require that notice of meetings be given to a particular newspaper. If a newspaper has a significant circulation in a municipality, it would appear to be reasonable to provide notice to that newspaper.
In addition to giving notice to the news media, it is emphasized that the Open Meetings Law requires that notice be "conspicuously posted in one or more designated public locations." Consequently, I believe that a public body must designate, presumably by resolution, the location or locations where it will routinely post notice of meetings. To meet the requirement that notice be "conspicuously posted", notice must in my view be placed at a location that is visible to the public.
I hope that I have been of some assistance.
Robert J. Freeman
cc: Town Board