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October 22, 1996

 

 

Mr. Edward H. Denhoff
R.R. #1 Box 127
Poland, NY 13431

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. Denhoff:

I have received your letter of October 7 in which you requested an advisory opinion concerning the Open Meetings Law. The issue involves the status of an ad hoc committee consisting of the supervisors of five towns in your vicinity.

In this regard, 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 legislative history of the definition and its judicial interpretation, the committees and subcommittees constituting public bodies would include entities created by law or those consisting entirely of members of a particular public body. For example, a county legislature consisting of fifteen members might designate committees consisting of five of its members. In that kind of situation, a committee would in my view be a "public body" required to comply with the Open Meetings Law.

The ad hoc committee to which you referred would not, based on judicial decisions, be subject to the Open Meetings Law. The committee in question does not include a majority of the membership of any particular entity, it does not consist wholly of members of a larger public body, as in the case of a committee of a legislative body, and it has no authority to take final and binding action. I note that judicial decisions indicate generally that 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 Newspapers 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)]. Therefore, an advisory body, such as the ad hoc committee that you described, would not in my opinion fall within the requirements of the Open Meetings Law. This is not to suggest that the committee could not hold open meetings, but rather that there is no obligation to do so.

I hope that the foregoing serves to enhance your understanding of the Open Meetings Law and that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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