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  August 13, 1998

 

Mr. Doug Craig
Ms. Eileen Hawkes
FSR/PAC 93
New Reporters
P.O. Box 239
Ogdensburg, NY 13669

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, unless otherwise indicated.

Dear Mr. Craig and Ms. Hawkes:

I have received your letter of August 11 in which you indicated that on August 3 the
"Sales Tax Redistribution Sub Committee of the Saint Lawrence County Legislature met"
without notifying the news media or the public of its meeting. You have asked that an
opinion be rendered and sent to the County Legislature advising that "this practice is illegal
and unconstitutional."

Having discussed the matter with the County Attorney, William F. Maginn, Jr., his
description of the facts is somewhat different from those that you presented in your letter and our conversations. Mr. Maginn indicated that the gathering in question was not a meeting of a standing committee of the County Legislature, but rather that the entity, which is solely advisory in nature, was created by the Chair of the Finance Committee, on his own initiative, not by or at the direction of the County Legislature. The advisory body includes himself, two other County Legislators, the County Administrator and the County Attorney. If that is so, it appears that Open Meetings Law would not have been applicable.

In this regard, the Open Meetings Law pertains to public bodies, and §102(2) 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."

The last clause of the definition refers to any "committee or subcommittee or similar body of [a] public body." Based on that language and judicial decisions, when a public body, such as a county legislature, creates or designates its own members to serve as a committee or subcommittee, the committee or subcommittee would constitute a public body subject to
the requirements of the Open Meetings Law. Therefore, committees of the County Legislature consisting solely of its own members would have the same obligations regading
notice and openness, for example, as well as the same authority to conduct executive sessions as the governing body [see Glens Falls Newspapers, Inc. v. Solid Waste and Recycling Committee of the Warren County Board of Supervisors, 195 AD2d 898 (1993)].

However, if an entity is advisory in nature and does not consist wholly of members of a public body, it has been held it would not constitute a public body. Judicial decisions indicate generally that ad hoc entities that include persons other than members of public
bodies that have no power to take final action 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)]. Therefore, an advisory body designated by a member of the Legislature rather than the Legislature itself would not in my opinion be subject to the Open Meetings Law, even if a member of a public body participates.

Lastly, since you contended that the practice at issue is "unconstitutional", I note that, even in the case of meetings of entities that are clearly public bodies, there is no constitutional right to attend their meetings; the right to attend is statutory.

I hope that the foregoing serves to clarify the matter and that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm
cc: St. Lawrence County Legislature
William F. Maginn, Jr., County Attorney