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August 7, 1996

 

 

Hon. Howard Golden, Borough President
Borough Hall
209 Joralemon Street
Brooklyn, NY 11201

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 Borough President Golden:

I have received your letter of July 22 in which you requested an advisory opinion concerning the status of the Fresh Kills Landfill Closure Task Force (the "Task Force") under the Open Meetings Law.

Your letter and the materials attached to it indicate that Governor Pataki and Mayor Giuliani recently reached an agreement to close the Fresh Kills landfill in Staten Island by the end of 2001, nine years ahead of schedule. In an effort to develop a plan for closure of the landfill, the Governor and the Mayor appointed a joint task force, according to a news release issued by the Executive Chamber, "to develop a plan for closing Fresh Kills and recommend alternatives for disposal." The release states that the Task Force will include representatives from the staffs of the Governor and the Mayor, New York State and New York City agencies, the Borough President of Staten Island, Congresswoman Susan Molinari, the federal Environmental Protection Agency, and from an environmental group.

You have contended that the Task Force "should be subject to the Open Meetings Law." From my perspective, based on the judicial interpretation of that statute and my understanding of its functions, the Task Force appears to be beyond the coverage of the Open Meetings Law.

As you are aware, the Open Meetings Law pertains to meetings of 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."

Based on the foregoing, a public body is, in my view, an entity required to conduct public business by means of a quorum that performs a governmental function and carries out its duties collectively, as a body.

I have been informed that the Task Force, which has not met as of this date, will not operate pursuant to any quorum requirement, has only the capacity to offer recommendations to the Governor and the Mayor, and will not function as a body, i.e., in a manner similar to a city council, or a typical board or commission. On the contrary, the Task Force appears to have been created to carry out functions typical of the exercise of executive authority. Although the majority of the Task Force consists of specified government officials or their representatives, not all of the members or their staffs will participate in every aspect of Task Force business; rather, participation will occur as needed, based upon programmatic and functional considerations, as well as agencies' areas of expertise.

Somewhat analogous are entities with which you are familiar, district service cabinets. Those entities were created by §2705 of the New York City Charter. While that provision states that certain officials serve as members of the cabinet, other members are representatives of City agencies who might participate, comment or provide information on an as needed basis. For instance, if an issue arises that might appropriately be dealt with by the Department of Sanitation, that agency might send one or more representatives. Those same representatives, however, might not attend future meetings. Stated differently, the "membership" is dependent upon the nature of the issues that might arise in a community. In consideration of those factors, because a district service cabinet does not have a specific membership, nor would those in attendance at a given meeting function collectively as a body, it has been advised that a district service cabinet does not constitute a "public body" subject to the Open Meetings Law.

Several judicial decisions indicate generally that advisory ad hoc entities having no power to take final action fall outside the scope of the Open Meetings Law. As stated in those decisions: "it has long been held that the mere giving of advice, even about governmental matters is not itself a governmental function" [Goodson-Todman Enterprises, Ltd. v. Town Board of Milan, 542 NYS 2d 373, 374, 151 AD 2d 642 (1989); Poughkeepsie Newspaper v. Mayor's Intergovernmental Task Force, 145 AD 2d 65, 67 (1989); see also New York Public Interest Research Group v. Governor's Advisory Commission, 507 NYS 2d 798, aff'd with no opinion, 135 AD 2d 1149, motion for leave to appeal denied, 71 NY 2d 964 (1988)]. Perhaps most closely related to the matter is the decision rendered in Poughkeepsie Newspaper, supra. In that case, a task force was designated by then Mayor Koch consisting of representatives of New York City agencies, as well as federal and state agencies and the Westchester County Executive, to review plans and make recommendations concerning the City's long range water supply needs. The Court specified that the Mayor was "free to accept or reject the recommendations" of the Task Force and that "[i]t is clear that the Task Force, which was created by invitation rather than by statute or executive order, has no power, on its own, to implement any of its recommendations" (id., 67). Referring to the other cases cited above, the Court found that "[t]he unifying principle running through these decisions is that groups or entities that do not, in fact, exercise the power of the sovereign are not performing a governmental function, hence they are not 'public bod[ies] subject to the Open Meetings Law...(id.).

In sum, for the reasons expressed in the preceding commentary, the Task Force, in my opinion, does not constitute a public body and, therefore, is not required to comply with the Open Meetings Law.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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