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OML-AO-3682

October 1, 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 in which you requested an advisory opinion concerning the status of "working groups" established by the Buffalo Fiscal Stability Authority ("the Authority").

Section 3852 of the Public Authorities Law states that the Authority is "a corporate
governmental agency...constituting a public benefit corporation", and §3853 provides that its governing body consists of nine directors. Its charge, in brief, involves monitoring and advising the City of Buffalo concerning the City's financial matters.

At a meeting held by its directors in August, the Chairman "announced the creation of seven committees", referred to those entities as committees, and "identified each member of every committee"; only directors were designated to serve on the committees. Although the News asked to be informed of the times and locations of committee meetings, it was learned later that month that two committee meetings had been held without notice. When questioned with respect to the status of the committees under the Open Meetings Law, the News was informed by a Board member that:

"...it was the board's position that the committees are not subject to state open meetings laws. He said the panels should never have been called 'committees,' adding that they have been reclassified as 'working groups.' He said that the 'working groups' have no power. He said their purpose is to gather information. 'We don't think all information-gathering sessions can be public or should be public'."

In September, the Authority approved a resolution "Establishing and Reconstituting Working Groups." The resolution indicates that the Authority "did not officially act" to establish committees and chose to establish seven "working groups." The working groups are authorized to gather and provide information to the Board of Directors and to make recommendations to the Board. The resolution also states that the Executive Director of the Authority is a member of each working group and may appoint staff to serve on each working group. Further, the Board's Chair and the leader of each working group may appoint others to a working group "for a limited period of time or indefinitely." In addition to the Executive Director, the resolution identified the other initial members of the seven work groups. In each instance, those other members are either three or four directors; no other persons are mentioned as participants in the working groups. Stated differently,
the core members of each work group are directors (members of the governing body of the Authority), plus the Executive Director serving ex officio.

While there is no case law of which I am aware that deals with the kind of situation at hand, because the Open Meetings Law is intended to enable the public to observe the deliberative process, the working groups are, in my view, essentially committees of the Board and, therefore, constitute public bodies required to comply with that statute. In this regard, I offer the following comments.

First, judicial decisions indicate generally that advisory bodies having no authority to take
binding action and which typically include persons other than members of a governing body 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)]. Therefore, an advisory body, such as a citizens' advisory committee, would not in my opinion be subject to the Open Meetings Law, even if a member of a governing
body or the staff of an agency participates.

Second, however, when a committee consists solely of members of a public body, such as the Board of Directors of the Authority, I believe that the Open Meetings Law is applicable.

By way of background, when the Open Meetings Law went into effect in 1977, questions consistently arose with respect to the status of committees, subcommittees and similar bodies that had no capacity to take final action, but rather merely the authority to advise. Those questions arose due to the definition of "public body" as it appeared in the Open Meetings Law as it was originally enacted. Perhaps the leading case on the subject also involved a situation in which a governing body, a school board, designated committees consisting of less than a majority of the total membership of the board. In Daily Gazette Co., Inc. v. North Colonie Board of Education [67 AD 2d 803 (1978)],
it was held that those advisory committees, which had no capacity to take final action, fell outside the scope of the definition of "public body".

Nevertheless, prior to its passage, the bill that became the Open Meetings Law was debated on the floor of the Assembly. During that debate, questions were raised regarding the status of "committees, subcommittees and other subgroups." In response to those questions, the sponsor stated that it was his intent that such entities be included within the scope of the definition of "public body" (see Transcript of Assembly proceedings, May 20, 1976, pp. 6268-6270).

Due to the determination rendered in Daily Gazette, supra, which was in apparent conflict
with the stated intent of the sponsor of the legislation, a series of amendments to the Open Meetings Law was enacted in 1979 and became effective on October 1 of that year. Among the changes was a redefinition of the term "public body". "Public body" is now defined in §102(2) to include:

"...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 the original definition made reference to entities that "transact" public business, the current definition makes reference to entities that "conduct" public business. Moreover, the definition makes specific reference to "committees, subcommittees and similar bodies" of a public body.

In view of the amendments to the definition of "public body", I believe that any entity
consisting of two or more members of a public body, such as a committee, a subcommittee or "similar body" consisting of members of the Board of the Authority, would fall within the requirements of the Open Meetings Law when such an entity discusses or conducts public business collectively as a body [see Syracuse United Neighbors v. City of Syracuse, 80 AD 2d 984 (1981)]. A quorum of a public body is a majority of its total membership (see General Construction Law, §41). Therefore, in a body consisting of nine, a quorum would be five. If that body designates a committee of three, a quorum of the committee would be two.

Second, with respect to the general intent of the Open Meetings Law, the first sentence of its legislative declaration, §100, states that:

"It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listing to the
deliberations and decisions that go into the making of public policy."

In an early decision that focused largely on the intent of the Open Meetings Law that was
unanimously affirmed by the Court of Appeals, it was asserted that:

"We believe that the Legislature intended to include more than the mere formal act of voting or the formal execution of an official document. Every step of the decision-making process, including the decision itself, is a necessary preliminary to formal action. Formal
acts have always been matters of public record and the public has always been made aware of how its officials have voted on an issue. There would be no need for this law if this was all the Legislature intended. Obviously, every thought, as well as every affirmative act of a public official as it relates to and is within the scope of one's official duties is a matter of public concern. It is the entire decision-making process that the Legislature intended to affect by the enactment of this statute" [Orange County Publications v. Council of the City of Newburgh, 60 AD 2d 409, 415; affirmed 45 NY2d 947 (1978)].

In my opinion, the committees originally designated, those consisting solely of Board
members which, according to the resolution, the Board "did not officially act to establish", were "public bodies" required to comply with the Open Meetings Law. Again, the amendments to the definition of "public body" suggest a clear intention on the part of the State Legislature to ensure that entities consisting of two or more members of a governing body (committees, subcommittees or similar bodies) are themselves public bodies falling with the coverage of the Law.

Does the applicability of the Open Meetings Law change if a committee consists of three
members of a governing body, and in addition, a fourth person, not a member of the governing body, is designated to serve on the committee? What if each committee of the Board consisted solely of its own members, plus the Executive Director as an ex officio member? What if additions of that nature were made to evade the applicability and intent of the Open Meetings Law? From my perspective, when the core membership of an entity consists of members of a governing body, the kinds of additions or actions described in those questions would not change the essential character of the entity. In this instance, the core membership of the work groups includes either three or four directors, plus the Executive Director. The core members, having been designated by means of a
resolution approved by the Board, presumably may be removed only by action taken by the Board. Their status on the work groups is permanent, unless and until the Board as a whole takes action to remove them or until they no longer serve on the Board.

In contrast, other persons "may be appointed for a limited period of time or indefinitely" by the Chair or the leader of a work group and may be removed "in the sole discretion" of either of those persons. Those other persons may come and go as members of a work group without any action taken by the Board as a whole. That being so, in my view, they are not in reality full members of a work group. I would conjecture that it is likely that those persons may be staff of the Authority or other agencies or perhaps consultants. In typical circumstances, when staff or consultants are called upon to offer expertise or guidance, they do so on an ad hoc basis and do not become members of the public body that has sought their assistance.

Based on the foregoing, it is my opinion that the work groups are essentially committees of the Board and, therefore, constitute public bodies required to comply with the Open Meetings Law when a majority of the core members of a work group gather for the purpose of discussing matters within the area of its activity.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Buffalo Fiscal Stability Authority