February 27, 2001
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.
I have received your letter of January 28. According to your letter, and the news article attached to it, you serve as a member of the Zoning Board of Appeals of the Town of Schroeppel, and you excused yourself from consideration of a matter before the Board due to the possibility of a conflict of interest. You were directed, however, by the Town Attorney to leave the meeting room while the matter was being discussed. Although you indicated that you sought to attend “as a taxpayer and a citizen”, the Town Attorney told you that you “had to leave the room.”
From my perspective, you have the right to attend any meeting of the Zoning Board of Appeals or any public body subject to the Open Meetings Law. Section 103(a) of that statute states that meetings of public bodies are open to the general public. As a member of the public, I do not believe that the Town Attorney or any other person or entity would have the authority to preclude you from attending an open meeting of the Board.
In the only case of which I am aware in which an attempt was made to exclude a certain individual from attending an open meeting, the matter involved a school district employee who was the subject of a disciplinary proceeding, and the Board sought to prohibit his attendance at Board meetings as parts of a disciplinary sanction. While the Court found that disciplinary measures could be imposed in relation to the individual’s employment, it determined that the Board could not prohibit him, as a member of the public, from attending the open meeting [Goetschuis v. Board of Education, Supreme Court, Westchester County, NYLJ, August 8, 1996; aff’d 244 AD2d 552 (1997)]. The principle in my view is the same in the context of your inquiry. While you may be precluded from participating as a Board member due to a possible conflict of interest, I do not believe that, in your capacity as a member of the public, you may be excluded from an open meeting.
Even if the matter involving your interest could properly be considered in an executive session, as a member of the Board, I believe that you would have the right to be present. Section 105(2) of the Open Meetings Law provides that: "Attendance at an executive session shall be permitted to any member of the public body and any other persons authorized by the public body". Therefore, a member of a public body has the right to attend an executive session of that body.
I hope that I have been of assistance.
Robert J. Freeman
cc: Town Board
Zoning Board of Appeals