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November 19, 1999

OML-AO-3084

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

I have received your letter of October 8 in which you sought my views concerning "a
condition that exists within the Whitesboro School District..."

According to your letter, the Board of Education conducts its meetings in the District's Administrative Building, which houses District officials' offices and a small meeting room. You indicated that there are no handicapped toilets in the building, nor are there "reserved positions to accommodate wheelchairs." You added that the "seating layout" for Board meetings is such that when the meeting is well attended "there is a lot of commotion when someone in a wheelchair tries to gain access to the room"; furniture must be moved to accommodate those persons, and because of equipment at the rear of the meeting room, it is often difficult to hear the Board. You also indicated that the Board could hold its meetings in other District facilities that offer "superior parking, general access, comfort, seating capacity and better acoustics." Lastly, you wrote that during the portion of the meeting in which the public is permitted to speak, a person wanting to do so "is asked to stand up and state their name and address prior to speaking." You suggested that doing so "results in an awkward and sometimes discriminatory and impossible situation, if someone is unable to stand."

In this regard, I offer the following comments.

First, I note that §103(b) of the Open Meetings 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 or the public buildings law."

Based upon the foregoing, there is no obligation imposed 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 would better
accommodate handicapped persons, I believe that the meetings should be held in the location that is most likely to accommodate the needs of those persons.

With respect to the ability to hear what is said at meetings, I direct your attention to
§100 of the Open Meetings Law, its legislative declaration. That provision 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. It is the only climate under which the commonweal will prosper and enable the governmental process to operate for the benefit of those who created it."

In view of that expression of intent, it is clear in my view that public bodies must conduct
meetings in a manner that guarantees the public the ability to "be fully aware of" and "listen
to" the deliberative process. Further, I believe that every statute, including the Open
Meetings Law, must be implemented in a manner that gives effect to its intent, and that the
Board must situate itself and conduct its meetings in a manner in which those in attendance
can observe and hear the proceedings. To do otherwise would in my opinion be unreasonable and fail to comply with a basis requirement of the Open Meetings Law.

Next, in a related vein, every provision of law, including the Open Meetings Law, should be implemented in a manner that gives reasonable effect to its intent. In my opinion, if it is known in advance of a meeting that a larger crowd is likely to attend than the usual meeting location will accommodate, and if a larger facility is available, it would be reasonable and consistent with the intent of the Law to hold the meeting in the larger facility.

Conversely, assuming the same facts, I believe that it would be unreasonable to hold a
meeting in a facility that would not accommodate those interested in attending.

With respect to all of the foregoing, while public bodies have the right to adopt rules to govern their own proceedings [see e.g., Education Law, §1709(1)], 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", 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)].

From my perspective, requiring persons to "stand", particularly in the circumstance that you described would be unreasonable, and I believe that such a rule or procedure is inappropriate.

Similarly, I note that §103 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 District 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 or speak at a meeting of a public body.

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

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Board of Education