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OML-AO-3570

January 6, 2003

 

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

I have received your letter concerning minutes of meetings of the Conservation Fund
Advisory Board (CFAB), their contents, approval and the time within which they must be prepared and made available.

In this regard, first, the Open Meetings Law is applicable to meetings of public bodies, and §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)].

In this instance, however, the CFAB performs statutory duties described in §11-0327(3) of the Environmental Conservation Law.

In the decisions cited earlier, none of the entities was designated by law to carry out a
particular duty and all had purely advisory functions. More analogous to the matter in my view is the decision rendered in MFY Legal Services v. Toia [402 NYS 2d 510 (1977)]. That case involved an advisory body created by statute to advise the Commissioner of the State Department of Social Services. In MFY, it was found that "[a]lthough the duty of the committee is only to give advice which may be disregarded by the Commissioner, the Commissioner may, in some instances, be prohibited from acting before he receives that advice" (id. 511) and that, "[t]herefore, the giving of advice by the Committee either on their own volition or at the request of the Commissioner is a necessary governmental function for the proper actions of the Social Services Department" (id. 511-512).

Among the statutory duties is a requirement that the CFAB:

"...review the allocations and expenditures of the department for fish and wildlife purposes as provided in section 11-0303 of this title and report to the commissioner by July first of each year. The commissioner shall, by August first of each year, submit such report,
in its entirety, to the governor, the legislature and interested individuals and organizations. Such report shall include the findings of the advisory board regarding such allocations and expenditures, including expenditures and appropriations from the conservation fund and the extent to which such expenditures and appropriations are consistent with the requirements of state law..."

Based on the foregoing, a function of the Commissioner of the Department of Environmental Conservation is contingent upon receipt of a report of the findings of the CFAB. In consideration of the duties imposed by law upon the CFAB, I believe that it constitutes a "public body" required to comply with the Open Meetings Law.

Second, §106 of the Open Meetings Law pertains to minutes of meetings and provides what might be viewed a minimum requirements concerning the contents of minutes. That section states that:


"1. Minutes shall be taken at all open meetings of a public body which shall consist of a record or summary of all motions, proposals, resolutions and any other matter formally voted upon and the vote thereon.

2. Minutes shall be taken at executive sessions of any action that is taken by formal vote which shall consist of a record or summary of the final determination of such action, and the date and vote thereon; provided, however, that such summary need not include any matter which is not required to be made public by the freedom of information law as added by article six of this chapter.

3. Minutes of meetings of all public bodies shall be available to the public in accordance with the provisions of the freedom of information law within two weeks from the date of such meetings except that minutes taken pursuant to subdivision two hereof shall be
available to the public within one week from the date of the executive session."

In view of the foregoing, it is clear in my opinion that minutes of open meetings must be prepared and made available "within two weeks of the date of such meeting." However, minutes are required to consist merely of a record or summary of motions, proposals, resolutions, action taken, and the vote of the members. While a public body may choose to do so, there is no obligation to include reference to comments or the nature of discussions.

Having reviewed minutes of CFAB meetings available on its website, its minutes are more
expansive than the law requires and, in my view, are beneficial to the public in that form. In short, many who are interested in the work of the CFAB may not have the opportunity to attend its meetings, and the minutes provide an excellent description of what transpires at its meetings.

Lastly, there is nothing in the Open Meetings Law or any other statute of which I am aware that requires that minutes be approved. Nevertheless, as a matter of practice or policy, many public bodies approve minutes of their meetings. In the event that minutes have not been approved, to comply with the Open Meetings Law, it has consistently been advised that minutes be prepared and made available within two weeks, and that if the minutes have not been approved, they may be marked "unapproved", "draft" or "preliminary", for example. By so doing within the requisite time limitations, the public can generally know what transpired at a meeting; concurrently, the public is effectively notified that the minutes are subject to change.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:jm

cc: Conservation Fund Advisory Board