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May 12, 1998

Mr. Albert P. Roberts
Vergilis, Stenger, Roberts & Pergament
1611 Rte 9
Wappingers Falls, NY 12590

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. Roberts:

I have received your letter of April 20. You have raised a series of questions
concerning minutes of meetings of town boards and sought a "formal determination" from this
office.

In this regard, the Committee on Open Government is authorized to advise with respect to the Open Meetings Law; the Committee is not empowered to render any determination that is binding on a public body. Further, for reasons that I hope will be evident, I do not believe that unequivocal guidance can be offered.

The questions involve who determines the contents of minutes, how a correction of minutes should be recorded, and whether a town board has the authority to require that verbatim minutes of town board meetings be prepared.

To attempt to put the issues in perspective, I believe that four provisions are pertinent.
First, §106 of the Open Meetings Law deals specifically with minutes of meetings and states 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 meeting 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. ..."
Based on the foregoing, it is clear that minutes need not consist of a verbatim account of what is said. Rather, at a minimum, minutes must consist of a record or summary of motions, proposals, resolutions, action taken and the vote of each member. Second, subdivision (1) of §30 of the Town Law states in relevant part that the town clerk "shall attend all meetings of the town board, act as clerk thereof, and keep a complete and accurate record of the proceedings of each meeting". Third, subdivision (11) of §30 of the Town Law provides that the clerk "shall have such additional powers and perform such additional duties as are or hereafter may be conferred or imposed upon him by law, and such further duties as the town board may determine, not inconsistent with law". And fourth, §63 of the Town Law states in part that a town board "may determine the rules of its procedure".

In my opinion, inherent in each of the provisions cited is an intent that they be carried
out reasonably, fairly, with consistency, and that minutes be accurate. While a town board's
rules or procedure may be intended to ensure that appropriate minutes are prepared, there is no guarantee of the result. Similarly, although the opinions of the Comptroller that may serve in part as the basis for a rule or procedure ostensibly appear to be reasonable, they could be implemented in ways that are unreasonable. For purposes of illustration, I offer the following scenarios involving potential problems or pitfalls. To be sure, I am not inferring that any relate to any particular town, but rather that policies or procedures, although apparently reasonable, may be carried out in a manner inconsistent with their intent.

What if a board has a lop-sided majority of political party membership, or, irrespective
of party membership, it includes a maverick with whom the other members disagree, and the board by a vote of four to one chooses to exclude the questions or statements of the minority party member or maverick? While there may be no intent to do so, the board's discretionary authority could lead to unfair or inconsistent results.

In the same hypothetical situation as posited in relation to the first, a majority of the town board could require that a question or statement by a member of the public or the Board
be included in the minutes verbatim or in summary form. While the intent may be to be
reasonable, the Board could, on the basis of partisan politics, or perhaps favor or disfavor
with a person or board member, pick and choose which statements should be recorded. I am not suggesting that the board you represent would necessarily act in a partisan or personal manner; nevertheless, having dealt with the Open Meetings Law since its enactment, I can report that other boards have done so.

By requiring that minutes be submitted to the Board for correction of errors and omissions and approval, the intent is obvious -- to ensure that minutes be accurate. Nevertheless, numerous situations have arisen in which public bodies and their members have
sought to amend minutes in a way in which their contents would be unbalanced or would not
reflect what actually occurred. Again, I am not inferring that a particular board would do so;
however, even a rule or procedure that is most reasonable on its face may be subject to
interpretation or abuse in ways that may be unintended by those who adopted it.

I am not sure that perfect rules or procedures could be drafted to deal with minutes and the relationship between a town board and a town clerk. Even rules that appear to be most reasonable may be subject to a variety of interpretations or to methods of implementation inconsistent with their original intent.

Lastly, I know of no judicial decision dealing with the issue of verbatim minutes.
Nevertheless, I respectfully disagree with your view that a town board may require a clerk to prepare a verbatim account of the entirety of a meeting. As indicated earlier, subdivision (3) of §106 of the Open Meetings Law requires that minutes of meetings be prepared within two weeks of a meeting. From my perspective, in view of that time limitation, it would be unreasonable, notwithstanding the language of §30(11) of the Town Law, for a town board to require that verbatim minutes be prepared. Such a requirement, particularly if meetings are frequent or lengthy, would essentially preclude a town clerk from carrying out his or her other duties, which are numerous.

If there is concern regarding the accuracy of minutes or a desire to have a verbatim
account of statements made at a meeting, it has been suggested that a public body direct that a meeting be tape recorded. Further, having discussed the issue of verbatim minutes with others, review of such lengthy documents months or perhaps years after meetings is time consuming, and it is often difficult for the public and government officers in need of
information to locate the material that is desired or needed.

This is not to suggest that a board could not direct that certain elements of a meeting be recorded verbatim by a clerk, i.e., when the board, by means of a vote of a majority of its
membership, specifies that a certain statement, text of a resolution, agreement, etc., be
prepared verbatim in minutes. However, for reasons described above, I believe that it would be unreasonable and essentially ultra vires for a town board to require that minutes consist of a verbatim account of the entirety of every meeting.

I recognize that the foregoing does not offer clear answers to your questions. It is my hope, however, that my comments will be considered to be helpful and constructive.

Sincerely,

 

Robert J. Freeman
Executive Director
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