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April 21, 1998

Mr. Richard J. Klein
79 South Street
Cuba, NY 14727

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. Klein:

I have received your letters of April 3 and April 13 and the news articles attached to them. You have raised a series of questions in relation to both articles.

According to the first article, the Allegany County Administrator sent a letter to members of the Allegany County Legislature directing them to vote on a certain resolution by mail. The second article indicates that: "With an 8-6 tally from a confidential survey - the same number who voted against in February, - Allegany County lawmakers once again rejected the $14 a ton offer made in October..."

In this regard, first, there is nothing in the Open Meetings Law that would preclude members of a public body from conferring individually, by telephone or via mail. However, a series of communications between individual members or telephone calls among the members which results in a collective decision, a meeting held by means of a telephone conference, or a vote taken by mail would in my opinion be inconsistent with law. From my
perspective, voting and action by a public body may only be only be carried out at a meeting during which a quorum has physically convened.

As you may be aware, §102(1) of the Open Meetings Law defines the term "meeting" to mean "the official convening of a public body for the purpose of conducting public business". Based upon an ordinary dictionary definition of "convene", that term means:

"1. to summon before a tribunal;

2. to cause to assemble syn see 'SUMMON'" (Webster's Seventh New Collegiate
Dictionary, Copyright 1965).

In view of that definition and others, I believe that a meeting, i.e., the"convening" of a public body, involves the physical coming together of at least a majority of the total membership of the Commission. While nothing in the Open Meetings Law refers to the capacity of a member to participate or vote at a remote location by telephone or mail, it has consistently been advised that a member of a public body cannot cast a vote unless he or she is physically present at a meeting of the body.

It is noted, too, that the definition of "public body" [see Open Meetings Law, §102(2)] refers to entities that are required to conduct public business by means of a quorum. In this regard, the term "quorum" is defined in §41 of the General Construction Law, which has been in effect since 1909.

The cited provision states that:

"Whenever three of more public officers are given any power or authority, or three or more
persons are charged with any public duty to be performed or exercised by them jointly or as a board or similar body, a majority of the whole number of such persons or officers, at a
meeting duly held at a time fixed by law, or by any by-law duly adopted by such board of
body, or at any duly adjourned meeting of such meeting, or at any meeting duly held upon
reasonable notice to all of them, shall constitute a quorum and not less than a majority of the whole number may perform and exercise such power, authority or duty.
For the purpose of this provision the words 'whole number' shall be construed to mean the
total number which the board, commission, body or other group of persons or officers
would have were there no vacancies and were none of the persons or officers disqualified
from acting."

Based upon the language quoted above, a public body cannot carry out its powers or duties except by means of an affirmative vote of a majority of its total membership taken at a meeting duly held upon reasonably notice to all of the members. As such, it is my view that a public body has the capacity to carry out its duties only at meetings during which a majority of the total membership has convened.

I also direct your attention to the legislative declaration of the Open Meetings Law, §100, which states in part that:

"It is essential to the maintenance of a democratic society that the public business be
performed in an open and public manner and that the citizens of this state be fully aware of
and able to observe the performance of public officials and attend and listen to the
deliberations and decisions that go into the making of public policy."

Based on the foregoing, the Open Meetings Law is intended to provide the public with the right to observe the performance of public officials in their deliberations. That intent cannot be realized if members of a public body conduct public business as a body or vote by phone or by mail.

Second, the letter sent to the members of the Legislature by the County Administrator would constitute "intra-agency material" that falls within the scope of §87(2)(g) of the Freedom of Information Law. That provision permits an agency to withhold records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;
ii. instructions to staff that affect the public;
iii. final agency policy or determinations; or
iv. external audits, including but not limited to audits performed by the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different
ground for denial could appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld. As described in the newspaper, while I do not believe that members of the Legislature could be characterized as "staff", it would appear that portions of the letter analogous to "instructions to staff that affect the public" should
likely be disclosed.

Third, with respect to the "tally from a confidential survey", when action is taken by a public body, it must be memorialized in minutes, for §106 of the Open Meetings Law provides that:

"1. Minutes shall be taken at all open meetings of a public body which shall consist of a record or summary of all motions, proposals, resolutions and any other matter formally
voted upon and the vote thereon.
2. Minutes shall be taken at executive sessions of any action that is taken by formal vote
which shall consist of a record or summary of the final determination of such action, and the
date and vote thereon; provided, however, that such summary need not include any matter
which is not required to be made public by the freedom of information law as added by article six of this chapter.
3. Minutes of meetings of all public bodies shall be available to the public in accordance
with the provisions of the freedom of information law within two weeks from the
date of such meetings except that minutes taken pursuant to subdivision two hereof shall
be available to the public within one week from the date of the executive session."

In view of the foregoing, it is clear in my opinion that minutes must include reference to action taken by a public body.

Further, if a public body reaches a consensus upon which it relies, I believe that minutes reflective of decisions reached must be prepared and made available. In Previdi v. Hirsch [524 NYS 2d 643 (1988)], the issue involved access to records, i.e., minutes of executive sessions held under the Open Meetings Law. Although it was assumed by the court that the executive sessions were properly held, it was found that "this was no basis for respondents to avoid publication of minutes pertaining to the 'final determination' of any action, and 'the date and vote thereon'" (id., 646). The court stated that:

"The fact that respondents characterize the vote as taken by 'consensus' does not exclude
the recording of same as a 'formal vote'. To hold otherwise would invite circumvention of
the statute.
"Moreover, respondents' interpretation of what constitutes the 'final determination of such
action' is overly restrictive. The reasonable intendment of the statute is that 'final action'
refers to the matter voted upon, not final determination of, as in this case, the litigation
discussed or finality in terms of exhaustion or remedies" (id. 646).

Therefore, if the Legislature reached a "consensus" that is reflective of its final determination of an issue, I believe that minutes must be prepared that indicate its action, as well as the manner in which each member voted.

I note that §87(3)(a) of the Freedom of Information Law states that: "Each agency shall maintain...a record of the final vote of each member in every agency proceeding in which the member votes." As such, members of public bodies cannot take action by secret ballot.

In an effort to enhance compliance with and understanding of the open government laws,
copies of this opinion will be sent to County officials.

I hope that I have been of assistance.

Sincerely,


Robert J. Freeman
Executive Director

RJF:tt

cc: County Legislature
John Margeson, County Administrator