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 August 27, 1999

 

Mr. William F. McGowan
McGowan and Brownell
37 Seneca Street
Geneva, NY 14456

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. McGowan:

I have received your letter of July 30, as well as a videotape of a meeting recently held
by the City of Geneva Human Rights Commission. You raised a series of questions
concerning compliance with the Open Meetings Law by the Commission, and in this regard,
I offer the following comments.

First, municipal commissions on human rights are created pursuant to Article 12-D of the General Municipal Law. Based on a review of Article 12-D and consideration of the general powers, duties and obligations of those entities, I believe that the Geneva Human
Rights Commission is clearly a "public body" [see Open Meetings Law, §102(2)] subject to
the requirements of the Open Meetings Law.

Second, having watched the videotape of the meeting, while it was difficult in some segments to hear clearly what was said, it does not appear that the Commission complied with the Open Meetings Law. Following discussion of various items, the Commission determined to conduct an executive session. However, while a motion to enter into executive session appears to have been made and seconded, I do not believe that there was a vote on the motion. More importantly in my opinion, there was no statement indicating the reason for conducting the executive session.

Here I point out that the Open Meetings Law requires that a procedure be accomplished, during an open meeting, before it may enter into executive session. Specifically, §105(1) states in relevant part that:

"Upon a majority vote of its total membership, taken in an open meeting pursuant to a motion identifying the general area or areas of the subject or subjects to be considered, a public body may conduct an executive session for the below enumerated purposes only..."
As indicated in the language quoted above, a motion to enter into an executive session must
be made during an open meeting and include reference to the "general area or areas of the
subject or subjects to be considered" during the executive session. The ensuing provisions
of subdivision (1) of §105 specify and limit the subjects appropriate for consideration in
executive session. Absent an indication of the subject matter in a motion for entry into
executive session, neither the public nor the members of the Commission can know whether
a topic may validly be considered in private. Further, to be carried, such a motion must be
approved by an affirmative vote of a majority of the total membership of a public body.
Again, based on my review of the tape, there was no vote taken prior to entry into executive session.

In short, in conjunction with the preceding analysis, the Commission, in my view,
failed to comply with the Open Meetings Law.

You asked whether the Commission properly closed its executive session and returned
to public session. As I understand the manner in which events transpired, the Commission
moved to an office for the purpose of conducting the executive session, and you "just
followed along." Although you were asked to leave, you, in your words, "politely disagreed", and the Commission then adjourned and arranged to conduct its next meeting at a member's home.

From my perspective, there is nothing in the Open Meetings Law or any other law that
prescribes the manner in which an executive session must end. As you are likely aware, the
phrase "executive session" is defined in §102(3) of the Open Meetings Law to mean a portion of an open meeting during which the public may be excluded. Consequently, if an executive session is followed by the continuation of an open meeting, a public body will typically inform those in attendance that the open meeting will be resumed and either return to the location of the open meeting, or if the public was excluded from the meeting room, invite the public to reenter the meeting. If an executive session is held at the end of a meeting and no other business is conducted, the end of the executive session is generally the end of the meeting.

Further, if the number of members who depart leave less than a quorum, the meeting is
effectively adjourned, even if there is no motion or formal action to adjourn.

I note that one of the members made reference to Roberts Rules of Order. Roberts
Rules is not law. Morever, in my view, many of the rules are difficult to comprehend and
unnecessarily complex.

Lastly, while the Open Meetings Law does not specify where a public body must conduct its meetings, it does provide direction concerning the site of meetings. Section 103(b) of the Law states 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 of the public buildings law."

Based upon the language quoted above, the Open Meetings Law, in my opinion, imposes 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 are held in facilities that permit barrier-free access to physically handicapped persons. Therefore, if, for example, the public body has the capacity to hold its meetings in a first floor room that is accessible to handicapped persons rather than a second floor room, I believe that the meetings should be held in the room that is most likely to accommodate the needs of people with handicapping conditions.

Since the next meeting of the Commission was scheduled to be held at a member's home, that kind of site would generally not be an appropriate location in my view for a meeting of a public body. Aside from the issue of barrier-free access to physically handicapped persons, a home is not a public facility, and many have suggested that entry into a home to attend a meeting involves a sense of intrusion or intimidation. In my view, every law, including the Open Meetings Law, should be implemented in a manner that gives effect
to its intent. Holding a meeting at a member's home would, in my opinion, be unreasonable
and inconsistent with the intent of the law.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Human Rights Commission