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August 23, 2001

OML-AO-3358

 

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.

Dear

I have received your letter in which you sought clarification concerning a situation that was
the subject of an advisory opinion prepared at the request of Supervisor Gerald O. Keller of the Town of Glen. In brief, he questioned the status of a gathering of three of the five members of the Town Board who characterized the gathering as a "caucus." However, the Supervisor added that of the three, one is a republican, the second a democrat, and the third an independent. Based on that information, it was advised that, since all three were not from the same political party, the gathering constituted a "meeting" subject to the Open Meetings Law, not a "political caucus" that would have been exempt from the coverage of that statute.

You indicated that the facts presented by the Supervisor are accurate, but that all three were endorsed by the democratic party and ran on a democratic line. Consequently, you have sought my views "with respect to the caucusing of members of different political parties who have been endorsed and have accepted the endorsement of the same political party."

In this regard, as you aware, endorsement by more than one political party is not unusual, and in my view, in consideration of the intent of the Open Meetings Law and its judicial interpretation, the kind of gathering at issue would be subject to the requirements of that statute.

As indicated in the opinion addressed to Supervisor Keller, an ordinary dictionary definition of the term "caucus" refers to "a closed meeting of a group of persons belonging to the same political party..." In a decision dealing with the intent of the Open Meetings Law and its relation to the exemption from the law regarding political caucuses, Buffalo News v. Buffalo Common Council [585 NYS 2d 275 (1992)], the court stressed that exemptions should be construed narrowly. Reference was made to the decision cited in the opinion sought by the Supervisor, and it was stated that:

"The Court of Appeals in Orange County (supra) also declared: 'The purpose and intention of the State Legislature in the present context are interpreted as expressed in the language of the statute and its preamble.' The legislative intent, therefore, expressed in Section 108, must be read in conjunction with the Declaration of Legislative Policy of Article 7 as set forth in its preamble, Section 100.

"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. The people must be able to remain informed if they are to retain control over those who are their public servants. It is the only climate under which the commonwealth will prosper and enable the governmental process to operate for the benefit of those who created it.

"A literal reading of Section 108, as urged by Respondent, could effectively preclude the public from any participation whatsoever in a government which is entirely controlled by one political party. Every public meeting dealing with sensitive or controversial issues
could be preceded by a 'political caucus' which would have no public input, and the public meetings decisions on such issues would be a mere formality. Such interpretation would negate the Legislature's declaration in Section 100. The Legislature could not have
contemplated such a result by amending Section 108 and at the same time preserving Section 100" (id., 277).

Based on the foregoing, I believe that consideration of the matter must focus on the overall
thrust of the decision, coupled with the expressed legislative intent of the Open Meetings Law. To reiterate a statement in the Buffalo News decision: "any exemption must be narrowly construed so that it will not render Section 100 meaningless" (id., 278).

It is possible that the three members may have a philosophy or inclination similar to one
another. Nevertheless, by virtue of their political party registration, it appears that they have affirmatively chosen to distinguish themselves with respect to political party affiliation. It is widely known that there may be upstate democrats in the State Senate who are more conservative than their downstate counterparts and whose positions may in many instances be more closely aligned with the republican majority. In my view, despite what may be a similarity in their stances, if those democrats joined the republican majority during its caucus, I do not believe that the exemption regarding political caucuses would apply; on the contrary, I believe that the gathering would constitute a meeting subject to the Open Meetings Law.

In my view, the same conclusion should be reached in the situation at issue.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Hon. Gerald O. Keller