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OML-AO-3557

December 5, 2002

E-Mail

TO:

FROM: Robert J. Freeman, Executive 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
correspondence.

Dear

As you are aware, I have received your letter in which you sought an opinion concerning the status under the Open Meetings Law of the Onondaga Student Services Association, Inc. ("the Association"), a not-for-profit corporation that "receives and administers all funding for student activities generated by the student fee at Onondaga Community College." The Association's Board of Directors, according to your letter, consists of "faculty, students and administrators."

In this regard, a decision rendered by the Court of Appeals, the state's highest court, dealt
with virtually the same issue in Smith v. CUNY [92 NY2d 707 (1999)]. That case involved whether the Fiorello H. LaGuardia Community College Association, Inc. is a "public body" subject to the Open Meetings Law. In describing its nature and functions, the Court wrote that:

"The Association, Inc. is an organization comprised of administrators, faculty members and students. It is authorized to review proposed budgets, to allocate student activity fees and to authorize disbursements. CUNY collects a student activity fee from all students as a condition of enrollment. The Association, Inc. maintains the student activity fees in an account in its name" (id., 711).

The issue in Smith and in the situation that you presented is whether the entities in question
constitute public bodies that fall within the scope of the Open Meetings Law. Section 102(2) of that statute defines the phrase "public body" to mean:

"...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."

Judicial decisions indicate generally that advisory bodies having no power to take final
action, other than committees consisting solely of members of public bodies, fall outside the scope of the Open Meetings Law. As stated in those decisions: "it has long been held that the mere giving of advice, even about governmental matters is not itself a governmental function" [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)].

Nevertheless, in view of its functions and its relationship to a community college, The Court of Appeals found in Smith that the entity analogous to the Association is subject to the Open Meetings Law. Specifically, in its consideration of the matter, the Court stated that:

"In determining whether an entity is a public body, various criteria or benchmarks are material. They include the authority under which the entity was created, the power distribution or sharing model under which it exists, the nature of its role, the power it possesses and under which it purports to act, and a realistic appraisal of its functional
relationship to affected parties and constituencies...

It may be that an entity exercising only an advisory function would not qualify as a public body within the purview of the Open Meetings Law... More pertinently here, however, a formally chartered entity with officially delegated duties and organizational attributes of a
substantive nature, as this Association, Inc. enjoys, should be deemed a public body that is performing a governmental function (compare, [Matter of Syracuse United Neighbors v. City of Syracuse, 80 AD2d 984, 985 appeal dismissed 55 NY2d 995).] It is invested with decision-making authority to implement its own initiatives and, as a practical matter, operates under protocols and practices where its recommendations and actions are executed unilaterally and finally, or received merely perfunctory review or approval. This Association, Inc. therefore, is manifestly not just a club or extracurricular activity."
[Matter of Smith v. CUNY, 92 NY2d 707, 713-714 (1999)].

As in the case of the student association in Smith, the Association is clearly "not just a club
or extracurricular activity". On the contrary, if the description of its functions is accurate, it
administers all funding for student activities based on moneys generated by student fees. Based on the holding in Smith, therefore, I believe that the Board of the Association is a public body required to comply with and conduct its meetings in accordance with the Open Meetings Law.

I hope that I have been of assistance.

RJF:jm

cc: Board of Trustees, Onondaga Community College
Board of Directors, Onondaga Student Services Association, Inc.