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May 11, 1998

 

 

Hon. Douglas Irish
Councilman
Town of Queensbury
742 Bay Road
Queensbury, NY 12804

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 Councilman Irish:

I have received your letter of April 21 and a copy of Chapter 3 of the Town Code of
the Town of Queensbury entitled "Advisory Boards."

According to your letter, there is a "debate" in the Town concerning "whether a Town Board member can be excluded from executive sessions of the Recreation Commission." You added that the Commission was established by a resolution of the Town Board.

In this regard, I direct your attention to §105(2) of the Open Meetings Law. That provision states that: "Attendance at an executive session shall be permitted to any member of the public body and any other persons authorized by the public body." As such, only the
members of a public body have the right to attend an executive session of that body. If a
member of the Town Board is not a member of an advisory board, he or she ordinarily would not have the right to attend an executive session of such a body. However, §3-7.B. of the Town Code specifies that:

"All meetings of the advisory board shall be held on notice to the Town Board, which shall receive the same notice as is given members of the advisory board, and the members of the
aforesaid Town Board shall be entitled, as of right to attend any meeting called, whether the same is open or in executive session; provided, however, that members of the Town Board
shall not be considered members of the advisory board and shall not be entitled to vote on any matter before the advisory board.

Based on the foregoing, any Town Board member would have the right to attend an executive session of an advisory board subject to §3 of the Code.

I note that I am unaware of whether the Recreation Commission is an advisory board
that falls within the coverage of §3 of the Code. Frequently recreation commissions are
created in accordance with §243 of the General Municipal Law, and as I understand that
statute, those entities are not advisory in nature; rather, they have authority to act on behalf
of the municipalities that created them. Subdivision (1) of §243 states that:

"If the board of estimated apportionment, or if there be no such board, the common council, board of aldermen, or corresponding legislative body, or the governing board of any such county, town or village shall determine that the power to equip, operate and maintain playgrounds and recreation centers shall be exercised by a recreation commission, they may, by resolution, establish in such municipality a recreation commission, which shall possess all the powers and be subject to all the responsibilities of local authorities under this article."

If the Recreation Commission is not an advisory board, and if the Town Board has
conferred no special legal right on the part of its members to attend executive sessions of the Commission, I believe that the Commission could exclude any person, including a member of the Town Board, from its executive sessions. In that circumstance, in accordance with §105(2) of the Open Meetings Law, the Commission could choose to authorize a Town Board member or others to attend its executive sessions, but it would not be obliged, in my opinion, to do so.

It is suggested that you confer with the Town Attorney in order to ascertain whether
the Recreation Commission is an "advisory board" that falls within the scope of §3 of the
Town Code.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Town Board
Town Attorney