June 26, 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 facts presented in your correspondence.
I have received your letter in which you sought an opinion relating to the application of the
Open Meetings Law. You wrote that:
"...just before my calling the meeting to order, three of my Town Councilmen went outside of the building to meet. When they came back into the meeting, I addressed this meeting they had held outside of the building with them. I was then informed by one of my Councilmen that they had held a caucus. This would be fine, except that one of the Councilmen is a Republican, one is a Democrat, and one is an Independent."
From my perspective, a gathering of three of the five members of the Town Board, under the circumstances that you described, constituted a "meeting" that should have been held in accordance with the Open Meetings Law. In this regard, I offer the following comments.
First, by way of background, the definition of "meeting" [see Open Meetings Law, §102(1) 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 conducted open to the public, whether or not there is an intent to have 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)].
The decision rendered by the Court of Appeals was precipitated by contentions made by
public bodies that so-called "work sessions" and similar gatherings, such as "agenda sessions," 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, when a majority of the Board is present to discuss the Town business, any such gathering, in my opinion, would constitute a "meeting" subject to the Open Meetings Law, unless the meeting or a portion thereof is exempt from the Law.
Second, the Open Meetings Law provides two vehicles under which members of a public
body may meet in private. One is the executive session, a portion of an open meeting that may be closed to the public in accordance with §105 of the Open Meetings Law. The other arises under §108 of the Open Meetings Law, which contains three exemptions from the Law. When a discussion falls within the scope of an exemption, the provisions of the Open Meetings Law do not apply.
Since the Open Meetings Law became effective in 1977, it has contained an exemption
concerning political committees, conferences and caucuses. Again, when a matter is exempted from the Open Meetings Law, the provisions of that statute do not apply. Questions concerning the scope of the so-called "political caucus" exemption have continually arisen, and until 1985, judicial decisions indicated that the exemption pertained only to discussions of political party business. Concurrently, in those decisions, it was held that when a majority of a legislative body met to discuss public business, such a gathering constituted a meeting subject to the Open Meetings Law, even if those in attendance represented a single political party [see e.g., Sciolino v. Ryan, 81 AD 2d 475 (1981)].
Those decisions, however, were essentially reversed by the enactment of an amendment to the Open Meetings Law in 1985. Section 108(2)(a) of the Law now states that exempted from its provisions are: "deliberations of political committees, conferences and caucuses." Further, §108(2)(b) states that:
"for purposes of this section, the deliberations of political
committees, conferences and caucuses means a private meeting of
members of the senate or assembly of the state of New York, or the
legislative body of a county, city, town or village, who are members
or adherents of the same political party, without regard to (i) the subject matter under discussion, including discussions of public business, (ii) the majority or minority status of such political committees, conferences and caucuses or (iii) whether such political committees, conferences and caucuses invite staff or guests to participate in their deliberations..."
Based on the foregoing, in general, either the majority or minority party members of a legislative body may conduct closed political caucuses, either during or separate from meetings of the public body.
With respect to the situation that you described, if Democrat, Republican and Independent
members who serve on the Board constituting a majority of the Board's membership gather to discuss public business, because they are members of more than one political party, I do not believe that the gathering could be characterized as a political caucus that is exempt from the Open Meetings Law; on the contrary, that kind of gathering would in my view constitute a "meeting" subject to the Open Meetings Law. A political caucus by definition is in my opinion restricted to members or adherents of a single political party. Webster's New Collegiate Dictionary defines caucus as:
"a closed meeting of a group of persons belonging to the same political party or faction usu. to select candidates or to decide on policy."
Since the gathering described in your letter was attended by members of more than one political party, I do not believe that it could be described as a political caucus exempt from the Open Meetings Law. Again, it would appear to have been a "meeting" that fell within the coverage of that statute.
I hope that I have been of assistance.
Robert J. Freeman