June 12, 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.
I have received your letter of May 21 in which you expressed concern with respect to the location of meetings of the Board of Trustees of the Village of Deposit.
According to your letter, the Board had held its meetings at the fire hall. However, a new
facility is being constructed, and apparently the Board can no longer meet at that location. You wrote that the Board seeks to conduct its meetings "upstairs at the Village Hall." That building, however, is not "handicapped accessible."
In this regard, subdivision (a) of §103 of the Open Meetings Law states in relevant part that "Every meeting of a public body shall be open to the general public..." Subdivision (b) provides that:
"Public bodies shall make or cause to be made all reasonable efforts to ensure that meetings are held in facilities that permit barrier-free physical access to the physically handicapped, as defined in subdivision five of section fifty or the public buildings law."
The same direction appears in §74-a of the Public Officers Law regarding public hearings. Based
upon those provisions, there is no obligation upon a public body to construct a new facility or to
renovate an existing facility to permit barrier-free access to physically handicapped persons.
However, I believe that the law does impose a responsibility upon a public body to make "all
reasonable efforts" to ensure that meetings and hearings are held in facilities that permit barrier-free
access to physically handicapped persons. Therefore, if, for example, the Board has the capacity to
hold its meetings in a facility that is accessible to handicapped persons, I believe that the meetings should be held in the location that is most likely to accommodate the needs of those persons.
I note that in 1977, the initial year of the implementation of the Open Meetings Law, judicial direction was consistent with the advise offered here. Specifically, it was held that if a public body has the ability to conduct meetings in a location that is barrier free accessible, it is required to do so to comply with the Open Meetings Law [Fenton v. Randolph, 400 NYS 2d 987 (1977)].
It has been suggested in the past that a person who cannot attend a meeting held on a second
floor should inform a public body in advance of his or her intention to attend so that appropriate
arrangements can be made to transport that person to the meeting. Nevertheless, requiring
handicapped persons who could not attend a meeting on the second floor to call in advance of a
meeting is in my view unreasonable and inconsistent with law and would provide an impediment
with respect to handicapped persons that does not exist with regard to others. There may be any
number of reasons why a person may be precluded from notifying the Village of his or her intent to
attend a meeting in advance of a meeting. For instance, an individual may not be aware of a meeting
until just prior to the meeting; a person may not know so far in advance that he or she would want
to attend; a handicapped person may not know if transportation can be arranged, etc. In short, to fully comply with the Open Meetings Law, I believe that every meeting subject to that statute should be convened and held in a barrier-free accessible facility.
In an effort to enhance compliance with and understanding of the Open Meetings Law, a copy of this opinion will be forwarded to the Board of Trustees.
I hope that I have been of assistance.
Robert J. Freeman
cc: Board of Trustees