March 20, 1998
Mr. Bill VanAllen
Kingston Pulibc Access Commission
351 North Road
Hurley, NY 12443
Ms. Susan Ronga
Kingston Public Access Commission
P.O. Box 610
Port Ewen, NY 12466
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. VanAllen and Ms. Ronga:
I have received your letters, which are respectively dated March 5 and March 10. In both, the primary question is whether the Kingston Public Access Commission is subject to the Open Meetings Law.
The Commission consists of nine members, five of whom represent the City of Kingston, and one member each designated by four towns in the coverage area of the public access channel. If the Commission is required to comply with the Open Meetings Law, Mr. VanAllen expressed the belief that "all policy votes taken so far by the Commission are invalid and must be recast at a future meeting that is in compliance with the Open Meetings Law." Ms. Ronga indicated that all meetings of the Commission have been taped and aired in their entirety, and that notice of the Commission's meetings have been advertised on the public access channel and given to the local newspaper. Both of you raised questions concerning the notice requirements that may be applicable.
From my perspective, because it was created pursuant to regulations promulgated by the New York State Commission on Cable Television, the Kingston Public Access Commission is subject to the Open Meetings Law. I note that the New York State Commission on Cable Television was abolished, but that its functions were preserved and merged into the Department of Public Service. In this regard, I offer the following comments.
First, the regulations, 16 NYCRR §895.4 entitled "Minimum standards for public, educational and governmental (PEG) access", state in subdivision (c) as follows:
“Administration and use. The use of the channel capacity for PEG access shall be administered as follows:
(1) The public access channel shall be operated and administered by the entity designated by the municipality or, until such designation is made, by the cable television franchisee; provided, however, that the municipality may designate such entity at any time throughout the term of a franchise by a resolution adopted by the legislative body thereof.*
(2) The educational and governmental access channel shall be operated and administered by a committee or a commission appointed by local government and shall include appropriate representation of local school districts within the service area of the cable television system and may include for purposes of coordination any employee or representative of the cable television franchisee.**
(3) The entity responsible for administering and operating the public access channel shall provide notice to the general public of the opportunity to use such channel which notice shall include (i) a character-generated message transmitted at least hourly on such channel between the hours of 6 p.m. and 10 p.m. each day and (ii) written notice to subscribers at least annually. Notices shall include the name, address and telephone number of the entity to be contacted for use of the channel. All access programming shall be identified as such.
(4) Channel time shall be scheduled on the public access channel by the entity responsible for the administration thereof on a first-come, first-served, nondiscriminatory basis...”
Pertinent is the first asterisk (*) appearing at the end of paragraph (1), which states in relevant part that: "If a single public access channel is shared by more than one municipality, a single entity shall be jointly designated by the local legislative bodies of each franchising municipality in the system."
Second, the Open Meetings Law is applicable 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."
By viewing the definition of "public body" in terms of its components, the Commission is, in my view, a “public body”. It is an entity consisting of nine members; it is required in my opinion to conduct its business subject to quorum requirements (see General Construction Law, §41); and, pursuant to the regulations cited earlier, it conducts public business and performs a governmental function for five public corporations, the City of Kingston and four towns.
As a public body, meetings of the Commission must be held in accordance with the Open Meetings Law’s presumption of openness. Stated differently, meetings of the Commission must be conducted open to the public, except to the extent that an executive session may properly be held in accordance with §105(1).
With respect to notice, §104 of the Open Meetings Law requires that every meeting be preceded by notice given to the news media and posted. That provision 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."
Stated differently, if a meeting is scheduled at least a week in advance, notice of the time and place must be given to the news media and to the public by means of posting in one or more designated public locations, not less than seventy-two hours prior to the meeting. If a meeting is scheduled less than a week an advance, again, notice of the time and place must be given to the news media and posted in the same manner as described above, "to the extent practicable", at a reasonable time prior to the meeting. Therefore, if, for example, there is a need to convene quickly, the notice requirements can generally be met by telephoning the local news media and by posting notice in one or more designated locations.
In my view, a notification of a meeting appearing on the cable channel would not constitute notice. However, I believe that the notices sent to the local newspaper would satisfy the requirement that notice be given to the news media. Since the Law refers to posting in “one or more” designated locations, the Commission in my opinion should designate a particular location or locations where notice will consistently be posted. As such, the Commission could choose to post in a central location within the coverage area, or it could transmit notice to be posted in each of the municipalities.
Lastly, even if the Commission may not have fully complied with the Open Meetings Law to date, there would be no automatic invalidation of its actions. Moreover, it is doubtful in my opinion that a court would upset or invalidate the actions taken by the Commission to date. Subdivision (1) of §107 of the Open Meetings Law deals with the enforcement of that statute and states in part that:
“Any aggrieved person shall have standing to enforce the provisions of this article against a public body by the commencement of a proceeding pursuant to article seventy-eight of the civil practice law and rules, and/or an action for declaratory judgment and injunctive relief. In any such action or proceeding, the court shall have the power, in its discretion, upon good cause shown, to declare any action or part thereof taken in violation of this article void in whole or in part.”
Based upon the facts provided, it is doubtful in my opinion that “good cause” could be shown to invalidate action taken by the Commission, because the meetings of the Commission have been televised, and because notice of its meetings appear on television and apparently were sent to a local newspaper. It is also noted that §107(1) states that:
“An unintentional failure to fully comply with the notice provisions required by this article shall not alone be grounds for invalidating any action taken at a meeting of a public body.”
Under the circumstances, due to what appears to have been uncertainty concerning the application of the Open Meetings Law, again, it is unlikely from my perspective that a court, should a challenge be initiated, would invalidate actions taken to date by the Commission.
I hope that I have been of assistance.
Robert J. Freeman