NY.gov Portal State Agency Listing

 

OML-AO-3675
September 18, 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, unless otherwise indicated.

Dear

I have received your letter and appreciate your interest in compliance with the Open Meetings Law.

You referred to a situation in which six of the thirteen members of the Greene County
Legislature held "a joint press announcement regarding their intent to have Greene County financially support EMS services within the county." Other members expressed the opinion that the Open Meetings Law had been violated. You attached two newspaper accounts of the event, but it is unclear from those articles how the press announcement was carried out, whether action had effectively been taken or whether the legislators merely expressed support for a proposal. Based on our conversation, however, it appears that the gathering would not have been subject to the Open Meetings Law.

As you are aware, the Open Meetings Law pertains to meetings of public bodies, and §102(2) of that statute defines the term "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."

The County Legislature is clearly a public body required to comply with the Open Meetings Law. Section 102(1) of the Open Meetings Law defines the term "meeting" to mean "the official convening of a public body for the purpose of conducting public business". Based upon an ordinary dictionary definition of "convene", that term means:

"1. to summon before a tribunal;

2. to cause to assembly syn see 'SUMMON'" (Webster's Seventh New Collegiate Dictionary, Copyright 1965).

In view of the ordinary definition of "convene", I believe that a "convening" of a quorum requires the physical coming together of at least a majority of the total membership of the Legislature, or a convening by means of videoconferencing. An affirmative vote of a majority would be needed for the Legislature to take action or to carry out its duties.

Since six, less than half of the membership of the Legislature was present at the event at
issue, there would not have been a quorum, and consequently, the event would not have constituted a meeting subject to the Open Meetings Law. That being so, no action could have been taken. Based on my understanding of the matter and our conversation, no action was taken or purportedly taken. Rather, you indicated that the six members merely offered a proposal and expressed an intention to seek financial support for EMS services.

I note that provisions in the Open Meetings Law concerning videoconferencing are newly
enacted (Chapter 289 of the Laws of 2000), and in my view, those amendments clearly indicate that there are only two ways in which a public body may validly conduct a meeting. Any other means of conducting a meeting, i.e., by telephone, by mail, or by e-mail, would be inconsistent with law.

As indicated earlier, the definition of the phrase "public body" refers to entities that are
required to conduct public business by means of a quorum. The term "quorum" is defined in §41 of the General Construction Law, which has been in effect since 1909. The cited provision, which was also amended to include language concerning videoconferencing, states that:

"Whenever three of more public officers are given any power or authority, or three or more persons are charged with any public duty to be performed or exercised by them jointly or as a board or similar body, a majority of the whole number of such persons or officers, gathered together in the presence of each other or through the use of videoconferencing, at a meeting duly held at a time fixed by law, or by any by-law duly adopted by such board of body, or at any duly adjourned meeting of such meeting, or at any meeting duly held upon reasonable notice to all of them, shall constitute a quorum and not less than a majority of the whole number may perform and exercise such power, authority or duty. For the purpose of this provision the words 'whole number' shall be construed to mean the total number which the board, commission, body or other group of persons or officers would have were there no vacancies and were none of the persons or officers disqualified from acting."

Based on the foregoing, again, a valid meeting may occur only when a majority of the total membership of a public body, a quorum, has "gathered together in the presence of each other or through the use of videoconferencing." Moreover, only when a quorum has convened in the manner described in §41 of the General Construction Law would a public body have the authority to carry out its powers and duties. Consequently, it is my opinion that a public body may not take action or vote by means of a series of telephone calls or, for example, by e-mail. I note, too, that in order to have a quorum, "reasonable notice" must be given to all the members.

In sum, in this instance, there was no quorum present, and no action was or could have been taken. In consideration of those factors, I do not believe that the gathering constituted a "meeting" or, therefore, that the Open Meetings Law would have applied.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm