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July 3, 2001

OML-AO-3331a

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 memorandum in which you described a special meeting held by the
Vienna Town Board to conduct an "exit conference" with a representative of the Department of Audit and Control (the State Comptroller's office). You indicated that notice of the special meeting was given twenty-four hours prior to the meeting, that four of the five Board members attended, and that the gathering was not open to the public. You added that the representative of the State Comptroller said that the meeting was "exempt from disclosure" based on a claim of "executive privilege." It is your belief that the gathering should have been held in accordance with the Open Meetings Law.

In this regard, it is noted at the outset that I have discussed the status of so-called "exit
conferences" with representatives of the Department of Audit and Control on various occasions. They contend that those gatherings are convened by an auditor, that there is no intent on the part of municipal officials to deliberate or take action and that, therefore, they are not subject to the requirements of the Open Meetings Law. The issue, to the best of my knowledge, has not been reviewed by any court.

If indeed a quorum of a public body attends an exit conference, or convenes at any time for the purpose of conducting public business, collectively, as a body, I believe that such a gathering would constitute a "meeting" that falls within the requirements of the Open Meetings Law.

It is emphasized that 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, 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 public body gathers to discuss public business, any such gathering, in my opinion, would constitute a "meeting" subject to the Open Meetings Law.

It is also noted that it has been held that a gathering of a quorum of a city council for the
purpose of holding a "planned informal conference" involving a matter of public business constituted a meeting that fell within the scope of the Open Meetings Law, even though the Council was asked to attend by a city official who was not a member of the city council [Goodson-Todman v. Kingston Common Council, 153 AD 2d 103 (1990)]. Therefore, even though the gathering in question might have been held at the request of a person who is not a member of the Town Board, I believe that it was a meeting, for a quorum of the Board was present for the purpose of conducting public business.

With respect to an exit conference, if the members of the public body attend, presumably they do so in the performance of their official duties and for the purpose of conducting public business. Therefore, based upon the judicial interpretation of the Open Meetings Law, I believe that the presence of a quorum at an exit conference would constitute a meeting subject to the Open Meetings Law.

I point out that local governments operate differently in many cases from most state agencies. State agencies are often headed by an executive rather than a governing body, as in the case of the Department of Audit and Control. Exit conferences held with respect to audits of state agencies likely include the staff of an agency; no public body would be present or otherwise involved. Moreover, since municipalities are headed by governing bodies, I believe that those bodies have generally become used to conducting their business in public. Similar business conducted by state agencies, for reasons mentioned earlier, likely would not involve a public body and the Open Meetings Law does not become an issue.

From my perspective, the policy of the Office of the State Comptroller places municipal
bodies in an anomalous position. When the members constituting a quorum of such a body want to attend an exit conference or meet with an auditor, if they accede to the policy of the Office of the State Comptroller, they are faced with the possibility of violating the Open Meetings Law. Additionally, since the municipality is the subject of the audit, any criticism or embarrassment that might arise if an exit conference is held in public would likely be directed to the municipality rather than an auditor or the office that person represents. If municipal officials are willing to subject themselves to openness, it is difficult to understand why the Department of Audit and Control would object. It has been suggested by officials of that agency that if the meetings are held in public, auditors will not attend, and municipal officials would, therefore, be unable to gain the benefit of an auditor's explanation of findings or expertise. Consequently, while I disagree with the position taken by the Department of Audit and Control, it appears that the only sure method of avoiding a controversy regarding the Open Meetings Law would involve insuring that less than quorum of the Board be present.

With respect to the claim of "executive privilege", I know of no case in which executive
privilege has been asserted to close a meeting that would otherwise be open to the public. It is noted, however, that the state's highest court, the Court of Appeals, has determined that the companion statute of the Open Meetings Law, the Freedom of Information Law, abolished the governmental or executive privilege with regard to public access to government records. In short, the Court found that the ability to deny access to records is limited to the grounds for denial of access listed in the Freedom of Information Law [Doolan v. BOCES, 48 NY2d 341 (1978)]. In like manner, a variety of judicial decisions indicate that the grounds for entry into executive session appearing in the Open Meetings Law should be narrowly construed in order to maximize public access to meetings.

Lastly, assuming that the gathering in question constituted a "meeting" of the Town Board,
I point out that the phrase "special meeting" is found in §62(2) of the Town Law. That provision, from my perspective, generally deals with unscheduled meetings. Specifically, it states in relevant part that:

"The supervisor of any town may, and upon written request of two members of board shall within ten days, call a special meeting of the town board by giving at least two days notice in writing to the members of the board of the time when and place where the meeting is to be held".

The provision quoted above pertains to notice given to members of a town board, and the
requirements of that provision are separate from those contained in the Open Meetings Law. That statute requires that notice be given to the news media and posted prior to every meeting. Specifically, section 104 of that statute provides that:

"1. Public notice of the time and place of a meeting scheduled at least one week prior thereto shall be given to the news media and shall be conspicuously posted in one or more designated public locations at least seventy-two hours before each meeting.

2. Public notice of the time and place of every other meeting shall be given, to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a reasonable time prior thereto.

3. The public notice provided for by this section shall not be construed to require publication as a legal notice."

Stated differently, if a meeting is scheduled at least a week in advance, notice of the time and place must be given to the news media and to the public by means of posting in one or more designated public locations, not less than seventy-two hours prior to the meeting. If a meeting is scheduled less than a week an advance, again, notice of the time and place must be given to the news media and posted in the same manner as described above, "to the extent practicable", at a reasonable time prior to the meeting. Therefore, if, for example, there is a need to convene quickly, the notice requirements can generally be met by telephoning the local news media and by posting notice in one or more designated locations.

As you requested, copies of this response will be sent to the Department of Audit and Control and to residents who were asked to leave.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Nicole Pilcher
Michael Dixon
June F. O'Neill, Executive Coordinator for Intergovernmental Relations