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April 14, 2000

OML-AO-3139

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 March 8, as well as the materials attached to it. You have
sought an advisory opinion relating to the Open Meetings Law.

You wrote that you serve as Chair of the University Faculty Senate of the City University
of New York, and that in that role, you are an ex officio member of the Board of Trustees.
Nevertheless, at a meeting of the Committee on Faculty and Staff Affairs, "a standing committee of the Board", the chair of that committee moved to enter into executive session to discuss collective bargaining negotiations and asked that you leave. It is your view that, as a Trustee, you had the right to be present.

In this regard, I offer the following comments.

First, attached to your letter is an excerpt from §6204 of the Education Law pertaining
to the Board of Trustees of the City University. Subdivision (2) describes the membership of the Board and specifies that the "chairperson of the university faculty senate" is an "ex-officio" member, that the "ex-officio trustees shall be afforded the same parliamentary privileges as are conferred upon the appointed trustees" and that they are subject to the same laws as other members with respect to the discharge of their duties. In short, as an ex officio member of the Board, you have the same privileges and responsibilities as other members.

Second, §105(2) of the Open Meetings Law states that: "Attendance at an executive
session shall be permitted any member of the public body and any other persons authorized by the public body." Based on the foregoing, I believe that you have the right to attend any
executive session of any public body upon which you serve as a member. For instance, because you are a member of the Board of Trustees, the Board, in my view, could not preclude you from attending any executive session that it conducts.

Third, however, the question in my opinion is whether you are a member of the Committee on Faculty and Staff Affairs, or whether, as a member of the Board of Trustees, you had the "privilege" to attend. As you may be aware, the Open Meetings Law pertains to meetings of public governing bodies, such as the Board of Trustees, and committees and similar bodies consisting of members of governing bodies. Section 102(2) of that statute defines the phrase "public body" to include:

"...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."

Although the original definition of "public body" enacted in 1976 made reference to entities that "transact" public business, the current definition as amended in 1979 makes reference to entities that "conduct" public business and added specific reference to "committees, subcommittees and similar bodies" of a public body.

In view of the definition of "public body", I believe that any entity consisting of two or
more members of a public body would fall within the requirements of the Open Meetings Law [see Glens Falls Newspapers, Inc. v. Solid Waste and Recycling Committee of the Warren County Board of Supervisors, 195 AD2d 898 (1993); also Syracuse United Neighbors v. City of Syracuse, 80 AD 2d 984 (1981)]. Therefore, a standing committee of Board of Trustees members in my view constitutes a public body subject to the Open Meetings Law that is separate and distinct from the Board of itself. Further, as a general matter, I believe that a quorum consists of a majority of the total membership of a body (see General Construction Law, §41). As such, since the Board of Trustees, by statute, consists of seventeen members, its quorum is nine [see also, Education Law, §6204(3)(d)]. If a committee consisting of five Board members is designated, its quorum would be three.

Again, as a member of the Board of Trustees, I believe that you have the right to attend
its executive sessions pursuant to §105(2) of the Open Meetings Law. If you are not a member of the Committee on Faculty and Staff Affairs, I do not believe that you would have the right to attend an executive session of that public body, unless there is some independent authority to do so based on a rule, policy or other privilege conferred by the Board of Trustees upon its members. It is suggested that you seek to ascertain whether the privilege of attending executive sessions of committees of the Board has been granted to members of the Board who are not members of committees.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Board of Trustees