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March 24, 2000

OML-AO-3128

E-Mail

FROM: Robert J. Freeman, Executive Director

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 February 11. In your capacity as a member of the Sullivan County Legislature, you raised questions concerning the Open Meetings Law.

The first involves an "‘unofficial' Steering Committee" consisting of the leaders of the County Legislature, who meet with the County Manager, the County Attorney and other "high ranking bureaucrats" on a weekly basis. With respect to the second, you indicated that you serve as Chair of the Real Property Committee and as a member of the Real Property Advisory Board, which meets monthly in private and consists of yourself, the County Attorney, the Fiscal Manager, the County Treasurer and the managers of the Real Property
Department and the Real Property Assessment Office. Recently, among the nine members of the County Legislature, five "appeared and sat through the proceedings" of the Advisory
Board. You have asked whether the presence of five of nine members would trigger the
application of the Open Meetings Law and whether the Advisory Board is subject to that
statute.

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 regarding
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 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)].

Considering the foregoing in relation to the issues that you raised, it is unlikely in my opinion that the Steering Committee, as you described it, would constitute a "public body" subject to the Open Meetings Law. You characterized the group as "unofficial" and there is no indication that the Committee was created by any action taken by the Legislature. If that
is so, I do not believe that it constitutes a "public body."

With respect to the Real Property Advisory Board, whether it falls within the coverage of the Open Meetings Law would in my view be dependent on the means by which it was created and its functions. In the decisions cited earlier, none of the entities was designated by law to carry out a particular duty and all had purely advisory functions. Pertinent, however, in my view is the decision rendered in MFY Legal Services v. Toia [402 NYS 2d 510 (1977)]. That case involved an advisory body created by statute to advise the Commissioner of the State Department of Social Services. In MFY, it was found that "[a]lthough the duty of the committee is only to give advice which may be disregarded by the Commissioner, the Commissioner may, in some instances, be prohibited from acting before he receives that advice" (id. 511) and that, "[t]herefore, the giving of advice by the
Committee either on their own volition or at the request of the Commissioner is a necessary
governmental function for the proper actions of the Social Services Department" (id. 511-
512).

If the Advisory Board was created by law, or if it performs a required function in the process of decision making, I believe that its meetings would be subject to the Open
Meetings Law. In that circumstance, even if its authority is advisory, if the decision maker or decision making body must, by law, consider the advice of the Advisory Board as a condition precedent to its ability to take action, I believe that the Board would be carrying out a governmental function and, therefore, would constitute a public body. On the other hand, if the Board is not a creation of law and it performs no legally necessary function in the decision making process, it would not, based on judicial decisions, be required to comply with the Open Meetings Law.

Lastly, the question involving the attendance of five of the nine members is whether their presence results in a finding that the gathering is a "meeting" that falls within the scope of the Open Meetings Law. Section 102 of that statute defines the term "meeting" to mean "the official convening of a public body for the purpose of conducting public business". It is emphasized that the definition of "meeting" has been broadly interpreted by the courts. In a
landmark decision rendered in 1978, the Court of Appeals found that any gathering of a
quorum of a public body for the purpose of conducting public business is a "meeting" that
must be convened open to the public, whether or not there is an intent to take action and
regardless of the manner in which a gathering may be characterized [see Orange County
Publications v. Council of the City of Newburgh, 60 AD 2d 409, aff'd 45 NY 2d 947 (1978)].

Inherent in the definition and its judicial interpretation is the notion of intent. If there is an intent that a majority of a public body convene for the purpose of conducting public business, such a gathering would, in my opinion, constitute a meeting subject to the requirements of the Open Meetings Law. However, if there is no intent that a majority of
public body will gather for purpose of conducting public business, collectively, as a body, but rather for the purpose of gaining education, training, or to listen to a speaker as part of an audience or group, for example, I do not believe that the Open Meetings Law would be
applicable.

In the context of the situation that you described, if the members of the Legislature attend merely as observers, it does not appear that their presence would transform the gathering into a meeting of the County Legislature. Conversely, however, if a majority of membership of the Legislature attends, if the members have the ability to attend due to their status as legislators, and if they participate as members of the Legislature, I believe that the gathering would constitute a "meeting" that falls within the framework of the Open Meetings Law.

I hope that I have been of assistance.

 

RJF:jm

cc: Ira J. Cohen, County Attorney