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December 28, 1998

 

Mr. Jeffrey H. Greenfield
NGL Realty Co.
112 Merrick Road
Box 847
Lynbrook, NY 11563

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. Greenfield:

I have received your letter of November 30. You wrote that you are "confused as to what rules and regulations the Lynbrook BID must follow" and asked whether it is subject to the Open Meetings Law.

In this regard, the statutes concerning the creation and functions of business improvement districts are found in Article 19-A of the General Municipal Law, §§980 and 980-a through 980-p. Having reviewed those provisions, I do not believe that business improvement districts are public bodies; rather they are geographical areas in which business districts are located within municipalities. Other than district management associations, which will be discussed later, Article 19-A did not create any new governing body to operate those districts. Section 980-c specifies that a local legislative body has various powers with respect to districts and the meetings of those entities, the local legislative bodies, would be subject to the Open Meetings Law.

It is unlikely in my view that district management associations created by §980-m of the General Municipal Law would be subject to the Open Meetings Law. That statute applies
to public bodies, and §102(2) of that statute defines "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."

It is noted that judicial decisions indicate generally that entities, such as citizens advisory bodies, having 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 government function" [Goodson-Todman Enterprises, Ltd. v. Town Board of Milan, 542 NYS2d 373, 374, 151 AD2d 642 (1989); Poughkeepsie Newspapers v. Mayor's Intergovernmental Task Force, 145 AD2d 65, 67 (1989); see also New York Public Interest Research Croup v. Governor's Advisory Commission, 507 NYS2d 798, aff'd with no opinion, 135 AD2d 1149, motion for leave to
appeal denied, 71 NY2d 964 (1988)]. Assuming that the associations have no authority to
take binding action on behalf of governmental entities, I do not believe that they would
constitute public bodies.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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