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 OML-AO-3658

July 28, 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 facts presented in your correspondence.

Dear

I have received your letter in which you sought assistance in relation to a new responsibility imposed upon you, the Groton Town Clerk, by the Town Board. Specifically, the Board recently approved a resolution requiring that you prepare "completely verbatim minutes" of meetings.

From my perspective, the Board cannot require that you prepare verbatim minutes of its
meetings. To reiterate points offered in other opinions dealing with similar or related matters, I believe that four provisions law are pertinent to the matter.

First, §106 of the Open Meetings Law deals directly with minutes of meetings and 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 meeting 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. ..."

Based on the foregoing, it is clear that minutes need not consist of a verbatim account of what is said. Rather, at a minimum, minutes must consist of a record or summary of motions, proposals, resolutions, action taken and the vote of each member. Second, subdivision (1) of §30 of the Town Law states in relevant part that the town clerk "shall attend all meetings of the town board, act as clerk thereof, and keep a complete and accurate record of the proceedings of each meeting". Third, subdivision (11) of §30 of the Town Law provides that the clerk "shall have such additional powers and perform such additional duties as are or hereafter may be conferred or imposed upon him by law,
and such further duties as the town board may determine, not inconsistent with law". And fourth, §63 of the Town Law states in part that a town board "may determine the rules of its procedure".

In my opinion, inherent in each of the provisions cited is an intent that they be carried out
reasonably, fairly, with consistency, and that minutes be accurate.

While I know of no case law that focuses on this particular issue, the courts have offered
guidance concerning the authority of governing bodies to adopt rules and the requirement that those rules must be reasonable. For example, as in the case of town boards having the authority to adopt rules and procedures pursuant to §63 of the Town Law, boards of education have essentially the same authority under §1709 of the Education Law. However, in a case in which a board's rule prohibited the use of tape recorders at its meetings, the Appellate Division found that the rule was unreasonable, stating that the authority to adopt rules "is not unbridled" and that "unreasonable rules will not be sanctioned" [see Mitchell v. Garden City Union Free School District, 113 AD 2d 924, 925 (1985)]. Similarly, if by rule, a town board chose to permit certain citizens to address it for ten minutes while permitting others to address it for three, or not at all, such a rule, in my view, would be unreasonable, despite the authority conferred upon a town board by §63 of the Town Law.

In my opinion, a rule requiring that a town clerk prepare a verbatim account of everything
said at every town board meeting would be found by a court to be unreasonable and beyond the authority granted to town boards by both §§30(11) and 63 of the Town Law. In consideration of the numerous statutory obligations imposed upon town clerks by a variety of statutes, a clerk would be effectively precluded from carrying out those duties if he or she is required to prepare verbatim minutes of every meeting. Meetings may be held frequently, often they are lengthy, and the time needed to type verbatim minutes would force the clerk to put aside other duties and likely engage in failures to comply with law. Moreover, if the Board or others have a need years from now to
determine the nature of action taken by the Board, the task of wading through lengthy documentation in an effort to find the crucial portions will be unnecessarily frustrating and time consuming.

In short, I believe that a requirement that you, as clerk, prepare verbatim minutes is not only unreasonable; a requirement of that nature also results in inefficiency and a lesser capacity to conduct town business in a manner that enables you to meet your statutory responsibilities.

It is suggested that reasonable alternative exists and is practiced by many municipalities. In order to have a verbatim account of statements made at meetings, the meetings can be audio tape recorded or perhaps video recorded. If there is a question concerning the accuracy of minutes or a need for detail not ordinarily included in typical minutes of a meeting, the tape can be reviewed to ensure accuracy, to resolve a dispute or to refresh one's memory. I note, too, that minutes of meetings must be retained permanently pursuant to the records retention schedule issued by the State Archives at the State Education Department, but that tapes are required to be maintained for a period of months. At the expiration of the retention period, the tapes could be preserved, or if they are no longer of value, they could be erased and reused.

Lastly, although your letter indicates that Kevin Crawford, Counsel to the Association of
Towns, is not familiar with opinions prepared by this office, I am sure that is inaccurate. Kevin and I have known one another for more than twenty years, I have spoken at the Association of Towns annual meeting in New York City for every year since 1977 (or perhaps earlier), and he is very familiar with the work of this office.

In an effort to resolve the matter, a copy of this opinion will be sent to the Town Board.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Town Board
Kevin Crawford