August 13, 2001
FROM: David M. Treacy, Assistant Director
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 recent e-mails in which you raised several issues relating to procedures used by a Town Board at recent meetings.
You questioned the Board's failure to "produce any legal notice, or affidavit of posting."
You also inquired about the propriety of entering into executive session "to discuss a land deal because it "could change the price of land if discussion was public." Additionally, you asked about the ability of a Board to "call a meeting for any purpose."
In this regard, I offer the following comments.
First, with respect to the Board's failure to produce a legal notice or affidavit indicating the
posting of a public notice, the Open Meetings Law requires that notice be given to the news media and posted prior to every meeting. Specifically, §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.
I point out that subdivision (3) of §104 specifies that a legal notice need not be given prior
to a meeting. Stated differently, to comply with the Open Meetings Law, a public body is not required to pay to place a legal notice in a newspaper or to "advertise" that a meeting will be held at a certain time and place; a public body must merely "give" notice to the news media and post the notice. In some circumstances, public bodies have given notice to the news media, and the newspapers or radio stations in receipt of the notices have chosen not to print or publicize the meetings to which the notices relate. In those cases, despite the failure of a notice to be publicized, a public body would have complied with law. In consideration of the foregoing, the Open Meetings Law does not require the Board to publish legal notice or prepare proof of posting a public notice of a meeting. If a record exists reflective of proof of posting, I believe that such a record would be accessible under the Freedom of Information Law.
Second, regarding the Town Board's authority to discuss a "land deal" during an executive
session, as you are likely aware, the Open Meetings Law is based on a presumption of openness. Stated differently, meetings of public bodies must be conducted open to the public, except to the extent that an executive session may properly be conducted in accordance with paragraphs (a) through (h) of §105(1). Pertinent to the matter is §105(1)(h), which authorizes a public body to enter into executive session to discuss:
"the proposed acquisition, sale or lease of real property or the proposed acquisition of securities, or sale or exchange of securities held by such public body, but only when publicity would substantially affect the value thereof."
Insofar as discussions by the Board, if conducted publicly, would have substantially affected the value of the property under consideration, I believe that executive sessions would properly have been held. When the public is aware of a possible real property transaction in advance of a meeting, particularly the site of the property, the extent to which executive sessions may validly be held is questionable; the more that the public is aware of the details of a transaction, the less likely it may be that publicity would substantially affect the value of the property.
Third, you raised questions regarding the necessity of a Town Board to reconvene an open meeting following an executive session for purposes of adjourning. As you may be aware, a public body is authorized to enter into executive sessions to discuss certain topics specified in §105(1) of the Open Meetings Law. It is noted that §102(3) defines the phrase "executive session" to mean a portion of an open meeting during which the public may be excluded. As such, an executive session is not separate and distinct from an open meeting; rather, it is a portion of an open meeting.
In this regard, I believe there are essentially two methods of adjourning a meeting. One
would involve a motion to adjourn. From my perspective, such a motion should be made during an open meeting. The other means of adjourning would involve a situation in which a sufficient number of members of a public body depart from a meeting or the executive session portion of the meeting so that the number remaining constitutes less than a quorum. For instance, if a public body consists of five members, a majority of its total membership would constitute a quorum. If four members are present at a meeting and two depart, there is no longer a quorum and the meeting would automatically be adjourned.
Lastly, with respect to special meetings, I direct your attention to §62(2) of the Town Law. That provision, from my perspective, deals with unscheduled meetings, rather than meetings that are regularly scheduled, and states in relevant part that:
"The supervisor of any town may, and upon written request of two members of the 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 includes requirements concerning notice given to members of a town
board, which are separate from those contained in the Open Meetings Law, §104, which was
I hope that I have been of assistance.