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June 18, 2001

OML-AO-3322

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.

Dear

I have received your correspondence concerning the propriety of certain activities of the
Mayor of Sag Harbor and two trustees in relation to the Open Meetings Law. You referred to instances in which the Mayor and the two trustees appeared to have represented themselves as the Board of Trustees, but the other two members of the Board were not aware of their actions.

With respect to one of those instances, you enclosed a copy of a letter sent by the Mayor and the two trustees to the Governor. Although it was not prepared on Village letterhead, centered on the top of the letter in capital letters and bold print is the following:

VILLAGE OF SAG HARBOR, NEW YORK
BOARD OF TRUSTEES

The first paragraph of the letter to Governor Pataki states:

"Once, again, we, the Mayor and Trustees of Sag Harbor, are writing to ask your help in our seemingly endless struggle to find a workable method of traffic calming that will solve present problems, avoid future problems and preserve the special character of this historic Village."

Another letter, prepared on the same stationery, was sent by the Mayor and the same two trustees to the Chair of the Mashashimuett Park Board, included a request to hold a meeting and present a plan to the Park Board. In neither of those instances were the remaining two members of the Village Board informed or aware of the activities of the other three.

From my perspective, the clear implication in both instances, in consideration of the bold
print at the top of the two letters, as well as the remarks in the letters, is that the three members held themselves out as the Board of Trustees, even though the other two members knew nothing of their actions. If my view is accurate, the Mayor and the two trustees acted in a manner inconsistent with law.

In this regard, while no law would preclude one member of the Board from conferring with another, in those situations in which action is or must be taken by the Board, collectively, as a body, such action may in my view be taken only at a meeting of the Board during which a quorum is present and only by means of an affirmative vote of a majority of its total membership.

By way of background, the Open Meetings Law is applicable to meetings of public bodies, and §102(2) of that statute defines the term "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."

I believe that a village board of trustees clearly constitutes a "public body" that is subject to the requirements of the Open Meetings Law.

Also relevant to the issue raised 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 village board 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 though the Mayor and two trustees constitute a majority of the Board, they can not take action as the Board, except at a meeting preceded by notice to each member during which a majority is present.

Section 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". Based upon an ordinary dictionary definition of "convene", that term means:

"1. to summon before a tribunal;

2. to cause to assembly syn see 'SUMMON'" (Webster's Seventh New Collegiate Dictionary, Copyright 1965).

In view of the ordinary definition of "convene", I believe that a "convening" of a quorum requires the physical coming together of at least a majority of the total membership of a board of trustees, that a majority of a board would constitute a quorum, and that an affirmative majority of votes would be needed for a board to take action or to carry out its duties.

It is emphasized that the definition of "meeting" has been broadly interpreted by the courts.
In a landmark decision rendered in 1978, the Court of Appeals, the state's highest court, found that any gathering of a quorum 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)].

I point out that the decision rendered by the Court of Appeals was precipitated by contentions made by public bodies that so-called "work sessions" and similar gatherings held for the purpose of discussion, but without an intent to take action, fell outside the scope of the Open Meetings Law.
In discussing the issue, the Appellate Division, whose determination was unanimously affirmed by the Court of Appeals, stated that:

"We believe that the Legislature intended to include more than the mere formal act of voting or the formal execution of an official document. Every step of the decision-making process, including the decision itself, is a necessary preliminary to formal action. Formal
acts have always been matters of public record and the public has always been made aware of how its officials have voted on an issue. There would be no need for this law if this was all the Legislature intended. Obviously, every thought, as well as every affirmative act of a public official as it relates to and is within the scope of one's official duties is a matter of public concern. It is the entire decision-making process that the Legislature intended to affect by the enactment of this statute" (60 AD 2d 409, 415).

The court also dealt with the characterization of meetings as "informal," stating that:

"The word 'formal' is defined merely as 'following or according with established form, custom, or rule' (Webster's Third New Int. Dictionary). We believe that it was inserted to safeguard the rights of members of a public body to engage in ordinary social transactions,
but not to permit the use of this safeguard as a vehicle by which it precludes the application of the law to gatherings which have as their true purpose the discussion of the business of a public body" (id.).

Based upon the direction given by the courts, if a majority of the Board gathers to discuss
public business, in their capacities as Board members, any such gathering, in my opinion, would constitute a "meeting" subject to the Open Meetings Law. Again, however, the presence of a majority does not necessarily signify the presence of a quorum, which is a gathering of a majority of the total membership preceded by reasonable notice given to each member.

Next and perhaps most importantly, in a judicial decision dealing with a situation in which
four members of a town board approved the publication of a letter by phone without informing the fifth, the court reached the same conclusion as offered here and cited an opinion rendered by this office. In Cheevers v. Town of Union (Supreme Court, Broome County, September 3, 1998), the court stated that:

"...there is a question as to whether the series of telephone calls among the individual members constitutes a meeting which would be subject to the Open Meetings Law. A meeting is defined as ‘the official convening of a public body for the purpose of conducting
public business' (Public Officers Law §102 [1]). Although ‘not every assembling of the members of a public body was intended to fall within the scope of the Open Meetings Law [such as casual encounters by members], ***informal conferences, agenda sessions
and work sessions do invoke the provisions of the statute when a quorum is present and when the topics for discussion and decision are such as would otherwise arise at a regular meeting' (Matter of Goodson Todman Enter. v. City of Kingston Common Council, 153
AD2d 103, 105). Peripheral discussions concerning an item of public business are subject to the provisions of the statute in the same manner as formal votes (see, Matter of Orange County Publs. v. Council of City of Newburgh, 60 AD2d 309, 415 affd 45 NY2d 947).

The issue was the Town's policy concerning tax assessment reductions, clearly a matter of public business. There was no physical gathering, but four members of the five-member board discussed the issue in a series of telephone calls. As a result, a quorum of members
of the Board were ‘present' and determined to publish the Dear Resident article. The failure to actually meet in person or have a telephone conference in order to avoid a ‘meeting' circumvents the intent of the Open Meetings Law (see e.g., 1998 Advisory Opns Committee on Open Government 2877). This court finds that telephonic conferences among the individual members constituted a meeting in violation of the Open Meetings Law..."

In sum, for the reasons described above, I do not believe that the Mayor and two trustees
could validly have acted as the Board of Trustees in the manner presented.

Lastly, you asked whether it is "legal or fraudulent to create" the letterhead that "pretends
not to be ‘official' village stationery..." In this regard, since the advisory jurisdiction pertains to matters involving the Open Meetings and Freedom of Information Laws, I cannot offer guidance concerning that issue.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Board of Trustees