May 22, 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.
As you are aware, I have received your inquiry of April 23.
You indicated that you serve as Chair of the Town of Erin Planning Board and that the Board "set up a Comprehensive Planning Committee with the approval of the Town Board for the purpose of revising [y]our comprehensive zoning plan." The Committee consists of six members of the Planning Board and four residents, and you asked whether the Committee is subject to the Open Meetings Law.
In this regard, the Open Meetings is applicable to meetings of public bodies, and §102(2) of the Open Meetings Law 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."
Although it has been held that advisory bodies are not required to comply with the Open
Meetings Law [see e.g., NYPRIG v. Governor's Advisory Commission, 507 NYS2d 798, aff'd with no opinion, 135 AD2d 1149, motion for leave to appeal denied, 71 NY2d 964 (1988); Poughkeepsie Newspaper v. Mayor's Intergovernmental Task Force on New York City Water Supply Needs. 145 AD2d 65 (1989)], in this instance, the Committee includes a majority of the membership of the Planning Board, which, pursuant to Town Law, must consist of five or seven members. Since six of the seven members of the Planning Board serve on the Committee, I believe that a gathering of a majority of the Committee for the purpose of conduct public business would constitute a meeting of a public body, the Planning Board, that is subject to the Open Meetings Law.
Additionally, it appears that the Committee may be a creation of law. Section 272-a of the Town Law entitled "Town comprehensive plan" includes reference to a "special board." That phrase is defined in subdivision (2)(c) of §272-a to mean:
"...a board consisting of one or more members of the planning board and such other members as are appointed by the town board to prepare a proposed comprehensive plan and/or amendment thereto."
If the Committee is a "special board", because it would have been created pursuant to a statute, again, I believe that it would constitute a "public body" subject to the Open Meetings Law.
I hope that I have been of assistance. Should any further questions arise, please feel free to contact me.
Robert J. Freeman