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April 24, 2000

OML-AO-3143

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 20 in which you questioned whether you, as a
member of the Pine Plains Town Board, have the right to attend meetings, "whether open or
closed", of the Town's Police Advisory Council, which was created by enactment of a local
law in 1997.

In this regard, I offer the following comments.

First, the Open Meetings Law is applicable 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 public body."

It is noted that several decisions indicate generally that ad hoc entities consisting of persons other than members of public bodies having 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)]. In this instance, the entity in question is not ad hoc, for it has a continual existence and functions concerning the duty to advise Town officials. Moreover, it has been held that an advisory body created by law, which is so in the case of the Police Advisory Council, is a public body subject to the Open Meetings Law [see MFY Legal Services, Inc. v. Toia, 402 NYS 2d 510 (1977)].

While the Council's authority is clearly advisory in nature, Local Law #4 requires that it "shall" engage in a variety of duties, including the responsibility to "receive and hear suggestions, comments and complaints", "review the annual proposed budget for the Police
Department" and its policies and procedures, "interview prospective appointments to the
Police Department" and generally advise the Town Board and the Police Department. From
my perspective, the ongoing responsibilities of the Council imposed by law reflect more than merely the ability to recommend or advise; they represent a recognition on the part of the Town Board that there is a continuing need for oversight that is sufficiently significant to
warrant the enactment of a local law ensuring permanent oversight of the functions of the
Police Department.

For the reasons expressed above, I believe that the Council is a "public body" required to comply with the Open Meetings Law. That being so, you or any member of the public may, in my opinion, attend its meetings.

If you are not a member of the Council, however, I do not believe that you would have the right to attend its executive sessions, even though you are a member of the Town Board. Section 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 Town Board, the Board, in my view, could not preclude you from attending any executive session that it conducts. If you are not a member of the Council, 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 Town Board.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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