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June 2, 2000

OML-AO-3167

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 May 4 as well as the materials attached to it. Your primary question involves the status under the Open Meetings Law of health and safety committees created pursuant to regulations promulgated by the Commissioner of Education. You also raised questions concerning public participation at meetings and the application of the Open Meetings Law to "building level committees."

In this regard, by way of background, §409-d of the Education Law authorizes and directs the Commissioner of Education "to establish, develop and monitor a comprehensive public school safety program which shall include a uniform inspection, safety rating and monitoring system." That statute also provides direction concerning the implementation of the program, including the establishment of a "a process for monitoring all school buildings." To carry out that process, the Commissioner promulgated regulations that require boards of education and boards of cooperative educational services carry out certain functions, one of which involves the "[e]stablishment of a health and safety committee comprised of representation from district officials, staff, bargaining units and parents" [§155.4(d)(1)].

A health and safety committee, pursuant to regulation, performs a variety of functions. For instance, school districts are required to prepare safety ratings of all school buildings, and the regulations state that "The safety rating shall be established by each district or board of cooperative educational services after consultation with the health and safety committee...[§155.4(c)(1)]. Similarly, procedures "for investigation and disposition of complaints related to health and safety...shall involve the health and safety committee" [§155.4(d)(7)]. In addition, boards of education are required to "establish procedures for the involvement of the health and safety committee to monitor safety during school construction projects", and those committees are required to "meet periodically to review issues and address complaints related to health and safety resulting from the construction project" [§155.5(c)(2)].

In short, certain functions within a school district cannot be accomplished without consultation involving a health and safety committee. As such, a health and safety committee performs necessary functions, pursuant to law, in the process of decision making within a district. For that reason, I believe that such a committee would constitute a "public body" subject to the Open Meetings Law.

Section 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."

Judicial decisions indicate generally that advisory bodies having no power to take final action, other than committees consisting solely of members of public bodies, 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, however, a health and safety committee performs a necessary and integral function in the implementation of §409-d of the Education Law and the regulations promulgated by the Commissioner, which have the force and effect of law.

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. More analogous to the matter 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).

Again, according to the regulations, since a health and safety committee carries out
necessary functions in the implementation of legislation and regulations, and since a board of
education in certain contexts cannot act without first having consulted with such committee, I believe that it performs a governmental function and, therefore, is a public body subject to
the Open Meetings Law.

In my opinion, the same conclusion can be reached by viewing the definition of "public body" in terms of its components. A health and safety committee is an entity consisting of more than two members; it is required in my view to conduct its business subject to quorum requirements (see General Construction Law, §41); and, based upon the preceding commentary, it conducts public business and performs a governmental function for a public corporation, i.e., a school district.

In a related question, you asked whether "volunteer building level" committees formed within districts are subject to the Open Meetings Law. I am unaware of any provision that deals with the creation of the kinds of entities at issue. If that is so, and if there is no legal duty to carry out a function as part of the decision making process, it is unlikely, in my view, that a building level committee would constitute a public body falling within the coverage of the Open Meetings Law. This is not to suggest that such committees could not hold open meetings, but rather that they would not be obliged to do so to comply with the Open Meetings Law.

Next, while the Open Meetings Law clearly provides the public with the right "to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy" (see Open Meetings Law, §100), the Law is silent with respect to public participation. Consequently, by means of example, if a public body does not want to answer questions or permit the public to speak or otherwise participate
at its meetings, I do not believe that it would be obliged to do so. On the other hand, a public body may choose to answer questions and permit public participation, and many do so. When a public body does permit the public to speak, I believe that it should do so based upon reasonable rules that treat members of the public equally.

Although public bodies have the right to adopt rules to govern their own proceedings
(see e.g., Education Law, §1709), 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 rule 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)]. Similarly, if by rule, a public body chose to permit
certain citizens to address it for ten minutes while permitting others to address it for three, or
not at all, such a rule, in my view, would be unreasonable.

Lastly, as you suggested, members of the public may have the opportunity to raise questions either during meetings or in writing. Nevertheless, other than a general obligation
to serve the public, I know of no law that would require a public official to answer questions.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director
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