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
I have received your letter of March 13. You complained that the Supervisor of the Town of Wayland "has meetings that do not include all four members of the Town Board", and that "[m]embers who are not in agreement with [him] are not informed of all meetings."
You have sought assistance in the matter. In this regard, I offer the following comments.
First, I point out that the Supervisor is a member, one of five, of the Town Board.
Second, the Open Meetings Law pertains to meetings of public bodies, and §102(2) of
that statute 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
Based on the foregoing, a town board clearly constitutes a "public body."
Third, especially relevant in my view is §41 of the General Construction Law which
provides guidance concerning quorum and voting requirements. Specifically, the cited
provision states that:
"Whenever three of more public officers are given any power or authority, or three or more persons are charged with any public duty to be performed or exercised by them jointly or as a board or similar body, a majority of the whole number of such persons or officers, at a meeting duly held at a time fixed by law, or by any by-law duly adopted by such board of body, or at any duly adjourned meeting of such meeting, or at any meeting duly held upon reasonable notice to all of them, shall constitute a quorum and not less than a majority of the whole number may perform and exercise such power, authority or duty. For the purpose of this provision the words 'whole number' shall be construed to mean the total number which the board, commission, body or other group of persons or officers would have were there no vacancies and were none of the persons or officers disqualified from acting."
Based upon the language quoted above, a public body cannot carry out its powers or duties
except by means of an affirmative vote of a majority of its total membership taken at a
meeting duly held upon reasonable notice to all of the members. Therefore, even if a
majority of the Town Board is present, i.e., the Supervisor and two other Board members, but they convene without informing the other two members, there would be no quorum, and the three would have no authority, in my view, to vote or otherwise take action.
Next, §102(1) of the Open Meetings Law defines the term "meeting" to mean "the official convening of a public body for the purpose of conducting public business". Therefore, if a majority of the Board gathers for the purpose of discussing public business, I believe that the gathering would constitute a "meeting" that falls within the requirements of the Open Meetings Law.
Further, the Open Meetings Law is clearly intended to open the deliberative process to the public and provide the right to know how public bodies reach their decisions. As stated in §100 of the Law, its Legislative Declaration:
"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."
Moreover, the Open Meetings Law has been broadly interpreted by the courts. In a
landmark decision rendered in 1978, the Court of Appeals found that any gathering of a
majority 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)].
In an effort to enhance compliance with an understanding of the Open Meetings Law, a copy of this opinion will be forwarded to the Board.
I hope that I have been of some assistance.
Robert J. Freeman
cc: Town Board