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August 2, 2001

OML-AO-3346

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, unless otherwise indicated.

Dear

I have received your letter and the materials attached to it. You have sought an advisory
opinion concerning the Open Meetings Law on behalf of the New York State Society of Certified Public Accountants.

The matter involves:

"...a meeting held by the Executive Committee of the New York State Board for Public Accountancy on March 1, 2001. This committee met via telephone conference call which included five members of the Board and its executive director (see attached letter from the State Education Department dated May 1, 2001). By the attached March 1st memorandum to State Board Executive Directors from the Executive Director of the NYS Board for Public Accountancy, the action taken during the March 1st conference call was described as unanimous approval of a resolution by the Executive Committee of
the NYS Board, ‘calling upon the National Association of State Boards of Accountancy to take specific action in regard to the Uniform CPA Examination.'"

In the letter to which you referred in the passage quoted above, the Deputy Commissioner for the Professions wrote that:

"The ‘meeting' referred to in your April 20, 2001 letter was a telephone discussion focusing on the Uniform CPA Examination by five members of the State Board of Accountancy and Daniel Dustin, the Executive Secretary of the State Board for Public Accountancy. The result of that planning discussion was that an item was placed on
the agenda for consideration and discussion by the full board of public accountancy at their scheduled meeting on April 25, 2001. The Department has historically interpreted a quorum of the board as being a majority of the statutory size of the board, which would be
12, not the five members who engaged in a telephone discussion in anticipation of the general board meeting...

"A key consideration in this matter is the definition of what constitutes a ‘meeting'. The term has been consistently interpreted as requiring that the gathering in question be of members of an entity that constitute a quorum in order to trigger an inquiry about whether
the nature of the meeting should have been subject to the Open Meetings Law. At least four decisions of the State Commission on Open Government (AO#3049, AO#3027, AO#2865 and AO#2848) unequivocally affirm that the Open Meetings Law provisions do not apply unless the meeting is of a quorum of the body which is authorized to transact business, and the meeting is for the purpose of doing public business..

"It was clearly understood by the individuals participating in the conference call that they did not have authority under the board's by laws, regulation or statute to take any official action. The Open Meetings Law was not intended to include preliminary discussions
among board members relating to meeting agendas and background information within the definition of ‘meeting'."

Notwithstanding the characterization of the event by the Deputy Commissioner, a memorandum pertaining to the event prepared by the Executive Secretary to the State Board for Public Accountancy ("the Board") stated that:

"On March 1, the Executive Committee of the New York State Board of Public Accountancy unanimously approved a resolution calling on NASBA to take specific action in regard to the Uniform CPA Examination. The resolution recognizes that state boards of accountancy are statutorily charged with the mandate to license and regulate Certified Public Accountants and that the current examination process does not provide state boards with the necessary control of the Uniform CPA Examination.

"The resolution calls upon NASBA to take five specific actions:

"The Executive Committee has asked me to share this resolution with you so that your board can consider it prior to NASBA's May 10 examination meeting in Chicago."

As I understand the contents of the letter of May 1 prepared by the DeputyCommissioner,
there is an entity known as the Executive Committee, that consists of at least five members of the Board, and it is your view that the position taken by officials of the Education Department represents a misinterpretation of and failure to comply with the Open Meetings Law. If indeed such a committee has been designated, I would agree with your contentions. Nevertheless, for reasons to be considered later, that may not be so. In this regard, I offer the following comments.

First, §7403 of the Education Law specifies that "A state board for public accountancy shall be appointed by the board of regents" and that such board "shall be composed of not less than twenty licensed accountants..."

Second, when a committee consists solely of members of a public body, such as the State
Board, I believe that the Open Meetings Law is applicable, for a committee itself constitutes a "public body."

By way of background, when the Open Meetings Law went into effect in 1977, questions
consistently arose with respect to the status of committees, subcommittees and similar bodies that had no capacity to take final action, but rather merely the authority to advise. Those questions arose due to the definition of "public body" as it appeared in the Open Meetings Law as it was originally enacted. Perhaps the leading case on the subject also involved a situation in which a governing body, a school board, designated committees consisting of less than a majority of the total membership of the board. In Daily Gazette Co., Inc. v. North Colonie Board of Education [67 AD 2d 803 (1978)], it was held that those advisory committees, which had no capacity to take final action, fell outside the scope of the definition of "public body".

Nevertheless, prior to its passage, the bill that became the Open Meetings Law was debated on the floor of the Assembly. During that debate, questions were raised regarding the status of "committees, subcommittees and other subgroups." In response to those questions, the sponsor stated that it was his intent that such entities be included within the scope of the definition of "public body" (see Transcript of Assembly proceedings, May 20, 1976, pp. 6268-6270).

Due to the determination rendered in Daily Gazette, supra, which was in apparent conflict
with the stated intent of the sponsor of the legislation, a series of amendments to the Open Meetings Law was enacted in 1979 and became effective on October 1 of that year. Among the changes was a redefinition of the term "public body". "Public body" is now defined in §102(2) to include:

"...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."

Although the original definition made reference to entities that "transact" public business, the current definition makes reference to entities that "conduct" public business. Moreover, the definition makes specific reference to "committees, subcommittees and similar bodies" of a public body.

In view of the amendments to the definition of "public body", I believe that any entity
consisting of two or more members of a public body, such as a committee or subcommittee consisting of members of a professional licensing board created by the Education Law, would fall within the requirements of the Open Meetings Law, assuming that a committee discusses or conducts public business collectively as a body [see Syracuse United Neighbors v. City of Syracuse, 80 AD 2d 984 (1981)]. Further, as a general matter, I believe that a quorum consists of a majority of the total membership of a body (see General Construction Law, §41). Therefore, if, for example, the Board consists of twenty, its quorum would be eleven; in the case of a committee consisting of five, its quorum would be three.

When a committee is subject to the Open Meetings Law, I believe that it has the same
obligations regarding notice, openness, and the taking of minutes, for example, as well as the same authority to conduct executive sessions, as a governing body [see Glens Falls Newspapers, Inc. v. Solid Waste and Recycling Committee of the Warren County Board of Supervisors, 195 AD 2d 898 (1993)].

In an effort to seek clarification regarding the matter, I contacted Kathy A. Ahearn, Counsel and Deputy Commissioner for Legal Affairs at the State Education Department. She indicated that:

"The Dustin memo incorrectly indicated that the ‘Executive Committee' of the State Board of Accountancy met on March 1, 2001 and approved a ‘resolution.' This so-called ‘committee,' however, is not a committee, but an ad-hoc group of four individuals – not all of whom are members of the State Board – who meet informally on an irregular basis to advise the State Board on possible topics for future State Board agendas...

"This ad-hoc group is not an official standing committee established in the Board by-laws, as are other committees. Furthermore, the group does not include a majority of the membership of the Board (4 versus 12), does not consist solely of members of the Board (Mr. Dustin is a State Education Department employee acting as staff to the State Board, and is not a member of the State Board), and has no authority to take final and binding action on any matter [emphasis added by Ms. Ahearn].

"On March 1, this ad-hoc group agreed in a telephone conversation to recommend to the State Board that it place on the Board's agenda the issue of licensure examinations for certified public accountants. This is the agreement reflected in the documents mischaracterized by Mr. Dustin as a ‘resolution.' The fact that this ‘resolution' was
neither signed nor dated by the ad-hoc group is further evidence of the group's informal status and its lack of authority to take final and binding action. Rather, the State Board itself met on April 25, 2001, in a public meeting properly noticed with a quorum present, and voted to take a policy position on this issue."

If Ms. Ahearn's characterization of the "group" is accurate, the Open Meetings Law would
not apparently be applicable [see 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)]. It is emphasized, however, that the State Board's standing committees, based on the language of the Open Meetings Law, its legislative history and its judicial construction, in my opinion clearly constitute "public bodies" required to comply with the Open Meetings Law.

As it applies to the State Board and its standing committees, §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." I note that new provisions in §102(1) and §41 of the General Construction Law pertain to the ability of a public body to conduct meetings by videoconference. Those provisions, however, are inapplicable to the situation at issue.

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

"1. to summon before a tribunal;

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

In view of that definition and others, I believe that a meeting, i.e., the "convening" of a public body, involves the physical coming together of at least a majority of the total membership, in this instance, the Executive Committee. While nothing in the Open Meetings Law refers to the capacity of a member to participate or vote at a remote location by telephone or mail, it has consistently been advised that a member of a public body cannot cast a vote unless he or she is physically present at a meeting of the body.

As indicated earlier, the definition of "public body" refers to entities that are required to
conduct public business by means of a quorum. The term "quorum" is defined in §41 of the General Construction Law, which has been in effect since 1909. 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, 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."

In consideration of the language quoted above, a public body 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 reasonably notice to all of the members. As such, it is my view that a public body has the capacity to carry out its duties only at meetings during which a quorum has convened. A quorum of a committee would be a majority of its total membership.

I also direct your attention to the legislative declaration of the Open Meetings Law, §100,
which states in part that:

"It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the
deliberations and decisions that go into the making of public policy.

Based on the foregoing, the Open Meetings Law is intended to provide the public with the right to observe the performance of public officials in their deliberations. That intent cannot be realized if members of a public body conduct public business as a body or vote by phone or by mail.

In addition, a judicial decision, the first dealing with the issue, 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 to 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 was 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 a decision rendered within the past two weeks, the court cited and concurred with an
opinion rendered by this office in which it was advised that "absent specific statutory authority to do so", members of a public body may not take action or vote, by proxy or otherwise, unless they are present at a meeting (Inner City Press/Community on the Move v. The New York State Banking, Supreme Court, New York County, NYLJ, July 20, 2001). Further, the amendments to the Open Meetings Law and the General Construction Law involving videoconferencing to which allusion was made earlier clarify the circumstances in which "meetings" may properly be held. Section 102(1) was amended to define "meeting" to mean "the official convening of a public body for the purpose of conducting public business, including the use of videoconferencing for attendance and
participation by the members of the public body"; §41 of the General Construction Law was amended to indicate that quorum is "a majority of the whole number of such persons or officers, gathered together in the presence of each other or through the use of videoconferencing..." (italics represents the language of amendments added by Ch. 289, L. 2000).

In sum, when an entity is subject to the requirements of the Open Meetings Law, I do not
believe that it may validly adopt a resolution, take action or conduct a valid meeting by phone. Its authority do so, in my view, is limited to those instances in which a quorum has physically convened or has convened by videoconference.

In an effort to enhance compliance with and understanding of the Open Meetings Law, copies of this opinion will be forwarded to officials at the State Education Department.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Johanna Duncan-Poitier
Daniel J. Dustin
Kathy Ahearn