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August 19, 1998

Mr. Ron Turner
21 Mulberry Street
New Paltz, NY 12561

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. Turner:

I have received your letters of August 12 and August 13, as well as the materials attached to them.

In the earlier letter, you complained that the meeting room in Village Hall in the Village of New Paltz is on the second floor and that it is not barrier free accessible. You added that a meeting once was held on the first floor, which is accessible to handicapped persons, but that it is the practice of the Village Board of Trustees to conduct its meetings in the second floor meeting room unless a person who could not otherwise attend contacts the Village in advance to ask that the meeting be held on the first floor. In a somewhat different vein, you indicated that it is also the practice to ask "that a person speaking to the Village Board at a board meeting both identify themselves and where they are from."

In this regard, I offer the following comments.

First, subdivision (a) of §103 of the Open Meetings Law states in relevant part that "Every meeting of a public body shall be open to the general public..." Subdivision (b) provides that:

"Public bodies shall make or cause to be made all reasonable efforts to ensure that meetings are held in facilities that permit barrier-free physical access to the physically handicapped, as defined in subdivision five of section fifty or the public buildings law."

The same direction appears in §74-a of the Public Officers Law regarding public hearings.
Based upon those provisions, there is no obligation upon a public body to construct a new
facility or to renovate an existing facility to permit barrier-free access to physically handicapped persons. However, I believe that the law does impose a responsibility upon a
public body to make "all reasonable efforts" to ensure that meetings and hearings are held in
facilities that permit barrier-free access to physically handicapped persons. Therefore, if, for
example, the Board has the capacity to hold its meetings in a facility that is accessible to
handicapped persons, I believe that the meetings should be held in the location that is most
likely to accommodate the needs of those persons.

I note that in 1977, the initial year of the implementation of the Open Meetings Law, judicial direction was consistent with the advise offered here. Specifically, it was held that if a public body has the ability to conduct meetings in a location that is barrier free accessible, it is required to do so to comply with the Open Meetings Law [Fenton v. Randolph, 400 NYS
2d 987 (1977)]. Requiring handicapped persons who could not attend a meeting on the
second floor to call in advance of a meeting is in my view unreasonable and inconsistent with law and would provide an impediment with respect to handicapped persons that does not exist with regard to others. There There may be any number of reasons why a person may be precluded from notifying the Village of his or her intent to attend a meeting in advance of a meeting. For instance, an individual may not be aware of a meeting until just prior to the meeting; a person may not know so far in advance that he or she would want to attend; a handicapped person may not know if transportation can be arranged, etc. In short, to fully comply with the Open Meetings Law, I believe that every meeting subject to that statute should be convened and held in a barrier-free accessible facility.

Second, although the Open Meetings Law clearly provides the public with the right "to observe the performance of public officials and attend and listen to the deliberations and
decisions that go into the making of public policy" (see Open Meetings Law,§100), the Law is silent with respect to the issue of public participation. Consequently, if a public body does not want to answer questions or permit the public to speak or otherwise participate at its meetings, I do not believe that it would be obliged to do so. Nevertheless, a public body may choose to answer questions and permit public participation, and many do so. When a public body does permit the public to speak, I believe that it should do so based upon rules that treat members of the public equally.

While public bodies have the right to adopt rules to govern their own proceedings, the
courts have found in a variety of contexts that such rules must be reasonable. For example,
although a board of education may "adopt by laws and rules for its government and
operations", pursuant to the Education Law, §1709 (1), in a case in which a board's rules
prohibited the use of tape recorders at its meetings, the Appellate Division found that the rule was unreasonable, stating that the authority to adopt rules "is not unbridled" and that
"unreasonable rules will not be sanctioned" [see Mitchell v. Garden City Union Free School
District, 113 AD 2d 924, 925 (1985)]. Similarly, if by rule, a public body chose to permit
certain citizens to address it for ten minutes while permitting others to address it for three,
or not at all, such a rule, in my view, would be unreasonable.

I reiterate that §103 (a) of the Open Meetings Law provides that meetings of public
bodies are open to the "general public." As such, any member of the public, whether a
resident of the Village or of another jurisdiction, would have the same right to attend. That
being so, I do not believe that a member of the public can be required to identify himself or
herself by name or by residence in order to attend a meeting of a public body. Further, since any person can attend, I do not believe that a public body could by rule limit the ability to speak to residents only. There are many instances in which people other than residents, such as those who may own commercial property or conduct business and who pay taxes within a given community, attend meetings and have a significant interest in the operation of a municipality.

In short, it is my view that any member of the public has an equal opportunity to partake in an open meeting, and that an effort to distinguish among attendees by residence or any other qualifier would be inconsistent with the Open Meetings Law and, therefore, unreasonable.

The second letter refers to a special meeting held by the Board of Trustees, and you questioned the legality of action taken by the Board and compliance with the Americans With Disabilities Act (ADA). As you may be aware, the advisory jurisdiction of the Committee on Open Government is limited to matters involving public access to records and meetings. Consequently, the issues raised in that letter are beyond the jurisdiction or expertise of this office. With regard to the issue relating to the expenditure of public money, it is suggested that you seek guidance from the Office of the State Comptroller. With regard to compliance with the ADA, I recommend that you contact the federal agency that oversees that statute.

In an effort to enhance compliance with and understanding of the Open Meetings Law, a copy of this opinion will be forwarded to the Village Board of Trustees.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Board of Trustees