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August 9, 1996

 

 

Mr. Peter W. Sluys
Community Media, Inc.
25 W. Central Avenue, Box 93
Pearl River, NY 10965

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. Sluys:

I have received your letter of August 8. You indicated that the Rockland County Commissioners of Elections "are unsure whether the filing of rulings and the hearings that precede them fall under the Open Meetings Law."

In this regard, in good faith, I must admit to an absence of expertise concerning the means by which county boards of elections carry out their duties. It appears that you are referring to proceedings conducted in relation to objections to nominations and designations filed pursuant to §6-154 of the Election Law. Based on that assumption, I offer the following comments.

First, the Open Meetings Law pertains 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."

Based on the terms of the definition, as well as §3-200 of the Election Law, I believe that a county board of elections constitutes a "public body" subject to the Open Meetings Law.

Second, as a general matter, meetings of public bodies must be conducted open to the public. However, there are two vehicles under which a meeting may be closed. One involves executive sessions. Section 102(3) of the Open Meetings Law defines the term "executive session" to mean a portion of an open meeting during which the public may be excluded. Section 105(1) prescribes a procedure that must be accomplished in public before an executive session may be held, and it specifies and limits the subjects that may properly be considered in an executive session. From my perspective, it is unlikely that any of the grounds for entry into executive session would be applicable. The other vehicle involves "exemptions" from the Open Meetings Law; if an exemption applies, the Open Meetings Law does not.

Potentially relevant to the matter is §108(1), which exempts "judicial or quasi-judicial proceedings" from the coverage of the Open Meetings Law. Often it is questionable where the line of demarcation may be drawn between what might be characterized as quasi-judicial and administrative or perhaps quasi-legislative kinds of functions. In a decision rendered by Judge Cooke, who later served as Chief Judge of the Court of Appeals, it was found that:

"It is difficult at times to distinguish judicial acts from those which are merely legislative, executive or administrative and that act of an administrative or ministerial officer does not become judicial and therefore subject to review by certiorari merely because it is necessary to use discretion and judgement its performance...The test may be stated to be that action is judicial or quasi-judicial when, and only when, the body or officer is authorized and required to take evidence and all the parties interested are entitled to notice and a hearing and, thus, the act of an administrative or ministerial officer becomes judicial and subject to review by certiorari only where there is an opportunity to be heard, evidence presented and a decision had thereon...Here, there is nothing in the laws in question directing or authorizing the Superintendent of Public Works to conduct such a hearing or to give the parties interested an opportunity to be heard, nor is there any allegation in the petition that such a hearing was conducted, and the determinations of Superintendent would not be judicial or quasi-judicial in nature" [City of Albany v. McMorran, 230 NYS 2d 434, 436-437 (1962); see also Schettino v. Alter, 510 NYS 2d 806, 809 (1986)].

While hearings or oral arguments, for example, as well as administrative matters must be conducted in public, following those public proceedings, it would appear that a board's deliberations might be quasi-judicial in nature if they include the ingredients described above and, therefore, outside the coverage of the Open Meetings Law. It is emphasized, however, that even when the deliberations of such a board may be outside the coverage of the Open Meetings Law, its vote and other matters would not be exempt. As stated in Orange County Publications v. City of Newburgh:

"there is a distinction between that portion of a meeting...wherein the members collectively weigh evidence taken during a public hearing, apply the law and reach a conclusion and that part of its proceedings in which its decision is announced, the vote of its members taken and all of its other regular business is conducted. The latter is clearly non-judicial and must be open to the public, while the former is indeed judicial in nature, as it affects the rights and liabilities of individuals" [60 AD 2d 409,418 (1978)].

Therefore, although a board of elections might deliberate in private, based upon the decision cited above, the act of voting or taking action must in my view occur during an open a meeting.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb

cc: Board of Elections