August 7, 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
I have received your letter concerning the status of so-called "3 x 3 meetings" held by
member of the New Rochelle City Council.
According to your letter, the Council consists of seven members, and often, three members of the Council meet with staff and others to discuss matters of City business. You expressed the view that those "3 x 3 meetings were a way in which meetings could be set up with the intent to circumvent the open meetings law." Most recently, you wrote that you received an email stating that
"Nick DeSantis, our auditor and a partner with the firm of Bennett, Kielson, Storch et al, would like to discuss the FY 2000 city audit report results and the city's financial condition in a Private meeting with City Council. This can only be done in a 3x3 session."
It is your contention that the foregoing serves "as a clear intent to have a 3x3 meeting to circumvent the open meetings law before council would hear the presentation in public at our July 10, 2001 meeting."
In this regard, as a general matter, I do not believe that the Open Meetings Law applies unless a quorum is present. Even when a meeting is scheduled and reasonable notice is given to all the members in a manner consistent with the requirements of §41 of the General Construction Law, but less than a majority attends, the gathering would not constitute a "meeting" and the public would have no right to attend. Section 41 of the General Construction Law, entitled "Quorum and majority", states in relevant part 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, gathered together in the presence of each other or though the use of videoconferencing, 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 body. 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 one of the persons or officers disqualified from acting."
The issue in the context of your inquiry involves the application of the Open Meetings Law
to a situation in which, by design, a gathering includes less than a quorum of the Council. If there is an intent to ensure the presence of less than a quorum at any given time in order to evade the Open Meetings Law, there is a judicial decision that infers that such activity would contravene that statute. As stated in Tri-Village Publishers v. St. Johnsville Board of Education:
"It has been held that, in order for a gathering of members of a public body to constitute a 'meeting' for purposes of the Open Meetings Law, a quorum must be present (Matter of Britt v County of Niagara, 82 AD2d 65, 68-69). In the instant case, there was never a quorum present at any of the private meetings prior to the regular meetings. Thus, none of these constituted a 'meeting' which was required to be conducted in public pursuant to the Open Meetings Law.
"We recognize that a series of less-than-quorum meetings on a
particular subject which together involve at least a quorum of the
public body could be used by a public body to thwart the purposes of
the Open Meetings Law...However, as noted by Special Term, the
record in this case contains no evidence to indicate that the members of respondent engaged in any attempt to evade the requirements of the Open Meetings Law" [110 AD 2d 932, 933-934 (1985)].
In Tri-Village, the Court found no evidence of an intent to circumvent the Open Meetings Law when a series of meetings was held, each involving less than a quorum of a board of education. However, as I interpret the passage quoted above, when there is an intent to evade the application of the Open Meetings Law by ensuring that less than a quorum is present, and, by design, less than a quorum gathers to discuss public business, such action would represent a failure to comply with that statute. If there is or has been an intent to circumvent the Open Meetings Law in the context of the situation of your concern, a court could in my opinion find that the Open Meetings Law has been infringed.
I hope that I have been of assistance.
Robert J. Freeman