State of New YorkMr. Ian Alterman
317 West 83rd Street
New York, NY 10024
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. Alterman:
As you are aware, I have received your letter of April 27 in which you sought an
"updated opinion" concerning the status of community boards under the Open Meetings Law
and the ability of members of those boards to elect their officers by secret ballot. You have
contended, in brief, that community boards are not public bodies because their functions are
advisory and that the creation of a record of votes of the members conflicts with "logic,
common sense, history, practice and, ultimately, each person's right to privacy with respect
to the election process."
Having reviewed earlier opinions on the subjects of your concern, I respectfully disagree with your contentions. In this regard, I offer the following comments.
First, 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."
Judicial decisions indicate generally that advisory bodies having no power to take final
action, other than committees consisting solely of members of public bodies, 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)].
Each of the entities at issue in the decisions cited above were ad hoc in that they were
charged with a narrow task to be performed within a limited duration; following the
performance of the task, the entities would cease to exist. In contrast, community boards are
creations of law, specifically Chapter 70 the New York City Charter, §§ 2800 and 2801; their
existence is ongoing, and only an amendment to the City Charter would terminate their
authority to carry out their duties.
In those decisions, none of the entities was designated by law to carry out a particular
duty and all had purely advisory functions. More analogous to the matter in my view is the
decision rendered in MFY Legal Services v. Toia [402 NYS 2d 510 (1977)]. That case
involved an advisory body created by statute to advise the Commissioner of the State
Department of Social Services. In MFY, it was found that "[a]lthough the duty of the
committee is only to give advice which may be disregarded by the Commissioner, the
Commissioner may, in some instances, be prohibited from acting before he receives that
advice" (id. 511) and that, "[t]herefore, the giving of advice by the Committee either on their
own volition or at the request of the Commissioner is a necessary governmental function for
the proper actions of the Social Services Department" (id. 511-512).
As I understand the provisions of the City Charter, community boards perform a
variety of what might be characterized as advisory functions. However, in at least one area
of responsibility, they perform a legally necessary step in the decision making process.
Paragraph (17) of §2800(d) states that each community board shall:
"Exercise the initial review of applications and proposals of
public agencies and private entities for the use, development
or improvement of land located in the community district,
including the conduct of a public hearing and the preparation
and submission to the city planning commission of a written
recommendation..."
Based on the foregoing, before the City Planning Commission can act with respect to land
use, a community board must conduct a public hearing and submit a written ecommendation
to the Commission. Although a community board does not render a final and binding
decision, it performs an obligatory function in the process leading to a determination.
In addition, under paragraphs (f) and (g) of §2800, a community board has the power
to hire a district manager and others. As such, it enjoys the authority to make certain
decisions in order to carry out its duties.
In sum, because community boards perform necessary functions pursuant to the City
Charter, I continue to believe and advise that they constitute public bodies required to comply
with the Open Meetings Law.
Second, I do not believe that voting by members of community boards in the performance of their official duties can be equated with citizens casting votes in a general election. In the former situation, the members are essentially representatives of the public appointed by a borough president to carry out governmental duties in the public interest. In the latter, voters can make choices, as individuals, not as representatives of others, as a means of expressing their views.
In terms of the law, §87(3)(a) of the Freedom of Information Law provides that:
"Each agency shall maintain:
(a) a record of the final vote of each member in every agency proceeding in which the member votes..."
Based upon the foregoing, when a final vote is taken by an "agency", which is defined to
include a state or municipal board [see §86(3)], such as a community board, a record must
be prepared that indicates the manner in which each member who voted cast his or her final
vote. Ordinarily, records of votes will appear in minutes.
In terms of the rationale of §87(3)(a), it appears that the State Legislature in
precluding secret ballot voting sought to ensure that the public has the right to know how its
representatives have voted with respect to particular matters. Although the Open Meetings
Law does not refer specifically to the manner in which votes are taken or recorded, I believe
that the thrust of §87(3)(a) of the Freedom of Information Law is consistent with the
Legislative Declaration that appears at the beginning of the Open Meetings Law and states
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. The people must be able to remain
informed if they are to retain control over those who are their
public servants."
Moreover, in an Appellate Division decision that was affirmed by the Court of Appeals, it was found that "The use of a secret ballot for voting purposes was improper." In so holding, the Court stated that: "When action is taken by formal vote at open or executive sessions, the Freedom of Information Law and the Open Meetings Law both require open voting and a record of the manner in which each member voted [Public Officers Law §87[3][a]; §106[1], [2]" Smithson v. Ilion Housing Authority, 130 AD 2d 965, 967 (1987); aff'd 72 NY 2d 1034 (1988)].
If, in the context of your remarks, a vote to elect an officer does not result in a
majority for any candidate, and the vote is not "final", I do not believe that the votes of each
member must be recorded. Under §87(3)(a), the members' votes must be memorialized only
in the case of a "final" vote.
If you would like to discuss the matter, please feel free to contact me. I hope that I
have been of assistance.
Sincerely,
Robert J. Freeman
Executive Director
RJF:tt